The House of Representatives overwhelmingly approves the Senate’s amendment to a defense appropriations bill that outlaws torture (see October 1, 2005 and November 1-4, 2005), 308-122, after the Republican House leadership stops blocking a vote on the amendment (see October 1, 2005). The next day, President Bush meets privately with the author of the amendment, Senator John McCain (R-AZ). In a surprising reversal of the White House’s opposition to the bill, Bush now says he supports the amendment—or will if McCain makes some changes. Bush asks McCain to alter the language of the amendment so that US intelligence officers, if charged with war crimes due to their abuse of a prisoner, can offer a defense that a “reasonable” person could conclude they were following a lawful order. McCain agrees. Bush and McCain hold a joint press conference to announce the White House’s support for the amendment (see December 15, 2005). The press bills the agreement between Bush and McCain as a serious setback for Vice President Cheney, the leader of the White House’s opposition to the bill, with the New York Times calling the vote a “stinging defeat” for Bush and a “particularly significant setback for Vice President Dick Cheney, who since July has led the administration’s fight to defeat the amendment or at least exempt the Central Intelligence Agency from its provisions” (see October 20, 2005). [Dubose and Bernstein, 2006, pp. 196; Savage, 2007, pp. 223]

Former Senate Majority Leader Tom Daschle (D-SD) writes that Congress explicitly rejected several attempts by the Bush administration to provide him with war-making authority and the authority to wiretap and monitor US citizens “in the United States” when it approved the September 18, 2001 authorization to use military force (AUMF) against terrorists (see September 14-18, 2001). Instead, the Bush administration merely usurped that authority and launched—or expanded (see Spring 2001)—its warrantless wiretapping program, conducted by the NSA. Since then, the Bush administration and the Justice Department have both repeatedly asserted that the AUMF gave them the right to conduct the wiretapping program, an assertion that Daschle says is flatly wrong. On December 21, the Justice Department admitted in a letter that the October 2001 presidential order authorizing warrantless eavesdropping on US citizens did not comply with “the ‘procedures’ of” the law that has regulated domestic espionage since 1978, known as the Foreign Intelligence Surveillance Act (FISA). FISA established a secret intelligence court and made it a criminal offense to conduct electronic surveillance without a warrant from that court, “except as authorized by statute.” However, the letter, signed by Assistant Attorney General William Moschella, argues that the AUMF gave the administration the authority to conduct the program. [Washington Post, 12/22/2005] The letter continues the argument that Congress gave President Bush the implict authority to create an exception to FISA’s warrant requirements, though the AUMF resolution did not mention surveillance and made no reference to the president’s intelligence-gathering authority. The Bush administration kept the program secret until it was revealed by the New York Times on December 15, 2005. Moschella argues that secret intelligence-gathering, even against US citizens, is “a fundamental incident to the use of military force” and that its absence from the resolution “cannot be read to exclude this long-recognized and essential authority to conduct communications intelligence targeted at the enemy.” Such eavesdropping, he argued, must by necessity include conversations in which one party is in the United States. [William Moschella, 12/22/2005 ] Daschle, one of the primary authors of the resolution, says that Moschella and the Bush administration are wrong in their assertions: “I did not and never would have supported giving authority to the president for such wiretaps. I am also confident that the 98 senators who voted in favor of authorization of force against al-Qaeda did not believe that they were also voting for warrantless domestic surveillance” (see September 12-18, 2001). [Washington Post, 12/23/2005]

President Bush’s rationale for authorizing warrantless surveillance against US citizens is of questionable legality and “may represent an exercise of presidential power at its lowest ebb,” according to a Congressional analysis. The Congressional Research Service (CRS), the independent and nonpartisan research bureau of the legislature, answers the question raised around the nation since the revelation of the secret program by the New York Times (see Early 2002): did Bush break the law when he ordered the National Security Agency to eavesdrop on US citizens without court orders or judicial oversight? The CRS report does not give a definitive yes or no answer to that question, but finds Bush’s legal rationale dubious at best. That rationale “does not seem to be as well-grounded” as administration lawyers have claimed, and the report finds that, despite assertions to the contrary by Bush and administration officials, Congress did not authorize warrantless wiretaps when it gave the executive branch the authority to wage war against al-Qaeda in the days after the 9/11 attacks. Unsurprisingly, Bush administration officials criticize the report. But some Republicans and Democrats find the report’s conclusions persuasive, and hold up the report as further evidence that Bush overextended his authority by authorizing the wiretaps. For instance, Republican Thomas Kean, the former chairman of the 9/11 commission (see January 27, 2003, says he doubts the program’s legality. Kean, who has not spoken publicly about the program until now, says the 9/11 commission was never told about the program, and he strongly doubts its legality. “We live by a system of checks and balances, and I think we ought to continue to live by a system of checks and balances,” Kean says. [Congressional Research Service, 1/5/2006 ; New York Times, 1/6/2006]

A memo from the nonpartisan Congressional Research Service (CRS) finds that President Bush appears to be in violation of the National Security Act of 1947 in his practice of briefing only select members of Congress on the National Security Agency’s warrantless wiretapping program. Bush has provided only limited briefings to the so-called “Gang of Eight,” the four Congressional leaders and the four ranking members of the House and Senate Intelligence Committees. But the 1947 law requires the US intelligence community to brief the full membership of both committees on the program. The memo is the result of a request by Representative Jane Harman (D-CA), who wrote Bush a letter saying that she believes he is required under the Act to brief both committees, and not just the Gang of Eight (see January 4, 2006). The White House claims that it has briefed Congressional leaders about the program over a dozen times, but refuses to provide details; the Congressional members so briefed are forbidden by law to discuss the content or nature of those classified briefings, even with their own staff members. “We believe that Congress was appropriately briefed,” says White House spokeswoman Dana Perino. The CRS agrees with Harman that the single exception to such full briefings under the law, covert actions taken under extraordinary threats to national security, is not applicable in this instance. Unless the White House contends the program is a covert action, the memo says, “limiting congressional notification of the NSA program to the Gang of Eight…would appear to be inconsistent with the law.” [US House of Representatives, 1/4/2006; Congressional Research Service, 1/18/2006 ; Washington Post, 1/19/2006] The day after the CRS memo is released, Senate Democrats John D. Rockefeller (D-WV) and Harry Reid (D-NV), along with House Minority Leader Nancy Pelosi (D-CA) and Harman, the ranking member of the House Intelligence Committee, write to Vice President Dick Cheney demanding that the full committees be briefed on such intelligence matters in the future. [Washington Post, 1/20/2006] On February 9, Bush will allow Attorney General Alberto Gonzales and former NSA chief Michael Hayden to brief the full House Intelligence Committee on the program (see February 8-17, 2006).

The Al Haramain Islamic Foundation, a now-defunct Saudi Arabian charitable organization that once operated in Oregon, sues the Bush administration [Associated Press, 2/28/2006] over what it calls illegal surveillance of its telephone and e-mail communications by the National Security Agency, the so-called Terrorist Surveillance Program. The lawsuit may provide the first direct evidence of US residents and citizens being spied upon by the Bush administration’s secret eavesdropping program, according to the lawsuit (see December 15, 2005). According to a source familiar with the case, the NSA monitored telephone conversations between Al Haramain’s director, then in Saudi Arabia, and two US citizens working as lawyers for the organization and operating out of Washington, DC. The lawsuit alleges that the NSA violated the Foreign Intelligence Surveillance Act (see 1978), the US citizens’ Fourth Amendment rights, and the attorney-client privilege. FISA experts say that while they are unfamiliar with the specifics of this lawsuit, they question whether a FISA judge would have allowed surveillance of conversations between US lawyers and their client under the circumstances described in the lawsuit. Other lawsuits have been filed against the Bush administration over suspicions of illegal government wiretapping, but this is the first lawsuit to present classified government documents as evidence to support its contentions. The lawsuit alleges that the NSA illegally intercepted communications between Al Haramain officer Suliman al-Buthe in Saudi Arabia, and its lawyers Wendell Belew and Asim Ghafoor in Washington. One of its most effective pieces of evidence is a document accidentally turned over to the group by the Treasury Department, dated May 24, 2004, that shows the NSA did indeed monitor conversations between Al Haramain officials and lawyers. When Al Haramain officials received the document in late May, 2004, they gave a copy to the Washington Post, whose editors and lawyers decided, under threat of government prosecution, to return the document to the government rather than report on it (see Late May, 2004). [Washington Post, 3/2/2006; Washington Post, 3/3/2006] Lawyer Thomas Nelson, who represents Al Haramain and Belew, later recalls he didn’t realize what the organization had until he read the New York Times’s December 2005 story of the NSA’s secret wiretapping program (see December 15, 2005). “I got up in the morning and read the story, and I thought, ‘My god, we had a log of a wiretap and it may or may not have been the NSA and on further reflection it was NSA,’” Nelson will recall. “So we decided to file a lawsuit.” Nelson and other lawyers were able to retrieve one of the remaining copies of the document, most likely from Saudi Arabia, and turned it over to the court as part of their lawsuit. [Wired News, 3/5/2007]Al Haramain Designated a Terrorist Organization - In February 2004, the Treasury Department froze the organization’s US financial assets pending an investigation, and in September 2004, designated it a terrorist organization, citing ties to al-Qaeda and alleging financial ties between Al Haramain and the 1998 bombings of two US embassies in Africa (see 10:35-10:39 a.m., August 7, 1998). The organization was disbanded by the Saudi Arabian government in June 2004 and folded into an “umbrella” private Saudi charitable organization, the Saudi National Commission for Relief and Charity Work Abroad (see March 2002-September 2004). In February 2005, the organization was indicted for conspiring to funnel money to Islamist fighters in Chechnya. The charges were later dropped. [US Treasury Department, 9/9/2004; Washington Post, 3/2/2006] The United Nations has banned the organization, saying it has ties to the Taliban. [United Nations, 7/27/2007]Challenging Designation - In its lawsuit, Al Haramain is also demanding that its designation as a terrorist organization be reversed. It says it can prove that its financial support for Chechen Muslims was entirely humanitarian, with no connections to terrorism or violence, and that the Treasury Department has never provided any evidence for its claims that Al Haramain is linked to al-Qaeda or has funded terrorist activities. [Associated Press, 8/6/2007] The lawsuit also asks for $1 million in damages, and the unfreezing of Al Haramain’s US assets. [Associated Press, 8/5/2007]Administration Seeks to Have Lawsuit Dismissed - The Bush administration will seek to have the lawsuit thrown out on grounds of national security and executive privilege (see Late 2006-July 2007, Mid-2007).

Conservative Party leader David Cameron. [Source: Public domain]Following the London bombings (see July 7, 2005), Britain passes a new Terrorism Act containing tougher laws, but they have little practical effect and many Islamic radicals carry on as before. The act introduces new offenses such as criminalizing the encouragement of terrorism and dissemination of terrorist publications, but the most controversial measure is an extension of the period for which suspects could be detained without trial. The government pushes for an extension from 14 days to 90 days, but parliament only allows 28 days. [Guardian, 11/9/2005; London Times, 11/9/2005; BBC, 11/9/2005; UK Parliament. House of Commons., 3/30/2006] In August 2006, Conservative Party leader David Cameron will criticize the government for failing to “follow-though when the headlines have moved on.” He asks, “Why have so few, if any, preachers of hate been prosecuted or expelled?” and “why has so little been done to use the existing law to deal with the radicalization that is rife within our shores?” He also criticizes the government for funding conferences addressed by radical imam Yousuf Abdullah Al-Qaradawi. [Conservative Party, 8/15/2006]

The Board of Governors of the American Bar Association (ABA) votes unanimously to investigate whether President Bush has exceeded his presidential authority by using signing statements to assert that he can ignore or override laws passed by Congress (see April 30, 2006 and September 2007). ABA president Michael Greco, who served with former Republican govenor William Weld (R-MA), appoints a bipartisan, blue-ribbon panel of legal experts, including former government officials, legal scholars, and retired FBI Director William Sessions, to carry out the inquiry. The ABA Task Force on Presidential Signing Statements and the Separation of Powers Doctrine will work for two months on a report (see July 23, 2006). [Savage, 2007, pp. 244-245]

Vinton Cerf. [Source: Ipswitch.com]The Information Technology Association of America, an information technology (IT) trade association, presents a paper authored by Internet founder Vinton Cerf and others which notes that the new capabilities of electronic surveillance of Internet, cellular communications, and voice-over internet protocols (VoIP) by US government and law enforcement officials under CALEA (see January 1, 1995) is inherently dangerous for fundamental civil liberties as well as technological innovation. (CALEA mandates that US telecommunications providers such as AT&T give US law enforcement agencies and intelligence organizations the ability to wiretap any domestic or international telephone conversations carried over their networks.) Cerf and his colleagues write, “In order to extend authorized interception much beyond the easy scenario, it is necessary either to eliminate the flexibility that Internet communications allow, or else introduce serious security risks to domestic VoIP implementations. The former would have significant negative effects on US ability to innovate, while the latter is simply dangerous. The current FBI and FCC direction on CALEA applied to VoIP carries great risks.” In order to implement the mandates of CALEA, the authors write, the nation’s electronic communications systems will become inherently less secure from hackers and others seeking to eavesdrop or disrupt communications, innocent citizens will not be secure from possibly illegal surveillance by law enforcement or intelligence agencies, and the nation’s communications systems will face near-insurmountable technological hurdles that will make it difficult for US telecommunications and Internet providers to continue to innovate and improve services. They conclude, “The real cost of a poorly conceived ‘packet CALEA’ requirement would be the destruction of American leadership in the world of telecommunications and the services built on them. This would cause enormous and very serious national-security implications. Blindly applying CALEA to VoIP and realtime Internet communications is simply not worth this risk.” [Information Technology Association of America, 7/13/2006 ]

Former Justice Department official Marty Lederman, now a Georgetown law professor, writes of the Hamdan v. Rumsfeld case (see June 30, 2006): “Focusing just on the [military] commissions aspect of this misses the forest for the trees. This ruling means that what the CIA and the Pentagon have been doing [detaining prisoners without due process] is, as of now, a war crime, which means that it should stop immediately.” [Savage, 2007, pp. 276]

President Bush signs the 2007 Defense Authorization Act into law. The bill contains a provision that allows the president to more easily declare “martial law” in the US. If Bush or a successor does so, the bill gives the administration the ability to strip much of state governors’ powers over their National Guards and relegate that authority to the federal government. Congress is likely to challenge that provision in the future. The bill makes significant changes to the Insurrection Act that allows the president to invoke the Act during events such as natural disasters, and thereby suspend the 1878 Posse Comitatus Act that prevents the US military from acting in a law enforcement capacity. Senator Patrick Leahy (D-VT) says, “[W]e certainly do not need to make it easier for Presidents to declare martial law. Invoking the Insurrection Act and using the military for law enforcement activities goes against some of the central tenets of our democracy.” [US Senate, 9/19/2006] The relevant section of the bill is entitled “Use of the Armed Forces in Major Public Emergencies.” This section states that “the President may employ the armed forces, including the National Guard in Federal service, to restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of… maintaining public order, in order to suppress, in any State, any insurrection, domestic violence, unlawful combination, or conspiracy.” [US Congress, 9/19/2006] GlobalResearch’s Frank Morales will write that the new law allows the federal government to, if it chooses, “commandeer guardsmen from any state, over the objections of local governmental, military, and local police entities; ship them off to another state; conscript them in a law enforcement mode; and set them loose against ‘disorderly’ citizenry….” Under the new law, the federal government may more easily order National Guard troops to round up and detain protesters, illegal aliens, “potential terrorists,” and just about anyone else, and ship them off to detention facilities. Those facilities were contracted out for construction to KBR, a subsidiary of Halliburton, in January 2006, according to the Journal of Counterterrorism and Homeland Security International, at a cost of $385 million over five years. The Journal noted that “the contract is to be executed by the US Army Corps of Engineers… for establishing temporary detention and processing capabilities to augment existing [immigration] Detention and Removal Operations (DRO)—in the event of an emergency influx of immigrants into the US, or to support the rapid development of new programs.” [GlobalResearch (.ca), 10/29/2006] Virtually no Congressional lawmakers seriously objected to the bill’s provision during debate. One of the few exceptions is Leahy, who will, six weeks later, sharply criticize the provision during debate over a separate piece of legislation. Leahy will say, “Using the military for law enforcement goes against one of the founding tenets of our democracy, and it is for that reason that the Insurrection Act has only been invoked on three—three—[occasions] in recent history. The implications of changing the Act are enormous, but this change was just slipped in the defense bill as a rider with little study. Other congressional committees with jurisdiction over these matters had no chance to comment, let alone hold hearings on, these proposals.… This is a terrible blow against rational defense policy-making and against the fabric of our democracy. Since hearing word a couple of weeks ago that this outcome was likely, I have wondered how Congress could have gotten to this point.… [I]t seems the changes to the Insurrection Act have survived… because the Pentagon and the White House want it.… Because of this rubberstamp Congress,… [w]e fail the National Guard, which expects great things from us as much as we expect great things from them. And we fail our Constitution, neglecting the rights of the States, when we make it easier for the president to declare martial law and trample on local and state sovereignty.” [US Senate, 10/29/2006]

Former Nixon White House counsel John Dean is troubled by the Military Commissions Act (MCA) (see October 17, 2006) currently under consideration in Congress. The MCA authorizes military tribunals instead of criminal court trials for suspected terrorists. Dean supported the idea of tribunals when they were first suggested in 2001, but, he writes: “[T]he devil… arrived later with the details. It never occurred to me (and most people) that Bush & Co. would design a system more befitting a totalitarian state than a democratic nation that once led the world by its good example.” After a previous tribunal procedure was struck down by the Supreme Court (see June 30, 2006), Bush sent another proposal to Congress in early September. Where the bill did not actively rewrite the Court’s findings, it ignored them altogether, Dean writes. Dean finds the law a stunning reversal of decades—centuries, in some instances—of US jurisprudence and international law, including its dismissal of Geneva protections, its retroactive protection for US officials who may have tortured detainees, and its dismissal of habeas corpus rights for detainees. Dean calls the proposed legislation “shameful,” and writes: “This proposal… is going to tell us a great deal about where we are as a nation, for as General [Colin] Powell said, ‘The world is beginning to doubt the moral basis of our fight against terrorism. To redefine [the Geneva Conventions] would add to those doubts.’ As will amending the war crimes law to absolve prior wrongs, denying detainees ‘a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples,’ and enacting a law that insults the Supreme Court.” [FindLaw, 9/22/2006]

Amnesty International logo. [Source: Amnesty International]Amnesty International objects to the Military Commissions Act (MCA) (see October 17, 2006) currently being passed by Congress. It comments, “With the passing of the Military Commissions Act of 2006, Congress has turned bad executive policy into bad law.” [Amnesty International, 9/28/2006]

The Military Commissions Act (MCA) (see October 17, 2006) is characterized by many as not applying to US citizens. Law professor Marty Lederman disagrees. Under the MCA, Lederman says, “if the Pentagon says you’re an unlawful enemy combatant—using whatever criteria they wish—then as far as Congress, and US law, is concerned, you are one, whether or not you have had any connection to ‘hostilities’ at all.” [Unclaimed Territory, 9/28/2006] Six months later, an administration lawyer will confirm that the law does indeed apply to US citizens (see February 1, 2007).

Glenn Greenwald. [Source: Mother Jones]Former civil litigator Glenn Greenwald writes that the upcoming passage of the Military Commissions Act (MCA) (see October 17, 2006) is nothing less than “legalizing tyranny in the United States. Period.” Greenwald puts the responsibility on both “the authoritarian Bush administration and its sickeningly submissive loyalists in Congress.” Greenwald continues: “There is a profound and fundamental difference between an Executive engaging in shadowy acts of lawlessness and abuses of power on the one hand, and, on the other, having the American people, through their Congress, endorse, embrace and legalize that behavior out in the open, with barely a peep of real protest. Our laws reflect our values and beliefs. And our laws are about to explicitly codify one of the most dangerous and defining powers of tyranny—one of the very powers this country was founded in order to prevent.” [Unclaimed Territory, 9/28/2006]

The newly passed Military Commissions Act (MCA—see October 17, 2006) gives the executive branch sweeping new powers sought by President Bush and Vice President Cheney since the 9/11 attacks, according to a New York Times analysis. Reporters Scott Shane and Adam Liptak write, “Rather than reining in the formidable presidential powers Mr. Bush and Vice President Dick Cheney have asserted since Sept. 11, 2001, the law gives some of those powers a solid statutory foundation. In effect it allows the president to identify enemies, imprison them indefinitely, and interrogate them—albeit with a ban on the harshest treatment—beyond the reach of the full court reviews traditionally afforded criminal defendants and ordinary prisoners. Taken as a whole, the law will give the president more power over terrorism suspects than he had before the Supreme Court decision this summer in Hamdan v. Rumsfeld that undercut more than four years of White House policy” (see June 30, 2006). The MCA “does not just allow the president to determine the meaning and application of the Geneva Conventions; it also strips the courts of jurisdiction to hear challenges to his interpretation.” Additionally, it gives Bush and his designees the absolute, unchallenged power to define anyone they choose as an “enemy combatant,” thereby stripping them of any traditional US legal protections and placing them under the far harsher and restrictive rubric of the MCA. “Over all, the legislation reallocates power among the three branches of government, taking authority away from the judiciary and handing it to the president.” Law professor Bruce Ackerman notes, “The president walked away with a lot more than most people thought. [The MCA] further entrenches presidential power” and allows the administration to declare even an American citizen an unlawful combatant subject to indefinite detention. “And it’s not only about these prisoners,” says Ackerman. “If Congress can strip courts of jurisdiction over cases because it fears their outcome, judicial independence is threatened.” [New York Times, 9/30/2006]

Joanne Mariner, an attorney with the civil liberties organization Human Rights Watch, calls the Military Commissions Act (see October 17, 2006) “exceedingly harmful” and a “grab-bag of unnecessary and abusive measures” that creates for detainees “a system of justice that is far inferior to that of the federal courts and courts-martial.” The bill does not directly address detention, Mariner writes, but does nothing to limit detention and, she believes, will be used by the administration to justify its current detention practices. [FindLaw, 10/9/2006]

President Bush signs the Military Commissions Act into law. [Source: White House]President Bush signs the Military Commissions Act (MCA) into law. [White House, 10/17/2006] The MCA is designed to give the president the authority to order “enemy detainees” tried by military commissions largely outside the scope of US civil and criminal procedures. The bill was requested by the Bush administration after the Supreme Court’s ruling in Hamdi v. Rumsfeld (see June 28, 2004) that the US could not hold prisoners indefinitely without access to the US judicial system, and that the administration’s proposal that they be tried by military tribunals was unconstitutional (see June 28, 2004). [FindLaw, 10/9/2006] It is widely reported that the MCA does not directly apply to US citizens, but to only non-citizens defined as “enemy combatants. [CBS News, 10/19/2006] However, six months later, a Bush administration lawyer will confirm that the administration believes the law does indeed apply to US citizens (see February 1, 2007). Sweeping New Executive Powers - The MCA virtually eliminates the possibility that the Supreme Court can ever again act as a check on a president’s power in the war on terrorism. Similarly, the law gives Congressional approval to many of the executive powers previously, and unilaterally, seized by the Bush administration. Former Justice Department official John Yoo celebrates the MCA, writing, “Congress… told the courts, in effect, to get out of the war on terror” (see October 19, 2006). [Savage, 2007, pp. 319, 322]'Abandoning' Core 'Principles' - The bill passed the Senate on a 65-34 vote, and the House by a 250-170 vote. The floor debate was often impassioned and highly partisan; House Majority Leader John Boehner (R-OH) called Democrats who opposed the bill “dangerous,” and Senate Judiciary Committee member Patrick Leahy (D-VT) said this bill showed that the US is losing its “moral compass.” Leahy asked during the debate, “Why would we allow the terrorists to win by doing to ourselves what they could never do, and abandon the principles for which so many Americans today and through our history have fought and sacrificed?” Senate Judiciary Committee chairman Arlen Specter (R-PA) had said he would vote against it because it is “patently unconstitutional on its face,” but then voted for it, saying he believes the courts will eventually “clean it up.” Specter’s attempt to amend the bill to provide habeas corpus rights for enemy combatants was defeated, as were four Democratic amendments. Republicans have openly used the debate over the MCA as election-year fodder, with House Speaker Dennis Hastert (R-IL) saying after the vote that “House Democrats have voted to protect the rights of terrorists,” and Boehner decrying “the Democrats’ irrational opposition to strong national security policies.” Democrats such as Senator Barack Obama (D-IL) say they will not fight back at such a level. “There will be 30-second attack ads and negative mail pieces, and we will be called everything from cut-and-run quitters to Defeatocrats, to people who care more about the rights of terrorists than the protection of Americans,” Obama says. “While I know all of this, I’m still disappointed, and I’m still ashamed, because what we’re doing here today—a debate over the fundamental human rights of the accused—should be bigger than politics.” [Washington Post, 10/19/2006] After winning the vote, Hastert accused Democrats who opposed the bill of “putting their liberal agenda ahead of the security of America.” Hastert said the Democrats “would gingerly pamper the terrorists who plan to destroy innocent Americans’ lives” and create “new rights for terrorists.” [New York Times, 10/19/2006]Enemy Combatants - The MCA applies only to “enemy combatants.” Specifically, the law defines an “unlawful enemy combatant” as a person “who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents,” and who is not a lawful combatant. Joanne Mariner of Human Rights Watch says the definition far exceeds the traditionally accepted definition of combatant as someone who directly participates in hostilities. But under the MCA, someone who provides “material support” for terrorists—whether that be in the form of financial contributions or sweeping the floors at a terrorist camp—can be so defined. Worse, the label can be applied without recourse by either Bush or the secretary of defense, after a “competent tribunal” makes the determination. The MCA provides no guidelines as to what criteria these tribunals should use. Taken literally, the MCA gives virtually unrestricted power to the tribunals to apply the label as requested by the president or the secretary. Mariner believes the definition is both “blatantly unconstitutional” and a direct contradiction of centuries of Supreme Court decisions that define basic judicial rights. [FindLaw, 10/9/2006] Under this definition, the president can imprison, without charge or trial, any US citizen accused of donating money to a Middle East charity that the government believes is linked to terrorist activity. Citizens associated with “fringe” groups such as the left-wing Black Panthers or right-wing militias can be incarcerated without trial or charge. Citizens accused of helping domestic terrorists can be so imprisoned. Law professor Bruce Ackerman calls the MCA “a massive Congressional expansion of the class of enemy combatants,” and warns that the law may “haunt all of us on the morning after the next terrorist attack” by enabling a round of mass detentions similar to the roundup of Japanese-American citizens during World War II. [Savage, 2007, pp. 322]Military Commissions - The MCA mandates that enemy combatants are to be tried by military commissions, labeled “regularly constituted courts that afford all the necessary ‘judicial guarantees which are recognized as indispensable by civilized peoples’ for purposes of common Article 3 of the Geneva Conventions.” The commissions must have a minimum of five commissioned military officers and a military judge; if death is a possible penalty, the commissions must have at least 12 officers. The defendant’s guilt must be proven beyond a reasonable doubt; convictions require a two-thirds vote. Sentences of beyond 10 years require a three-quarters vote, and death penalties must be unanimously voted for. Defendants may either represent themselves or by military or civilian counsel. The court procedures themselves, although based on standard courts-martial proceedings, are fluid, and can be set or changed as the secretary of defense sees fit. Statements obtained through methods defined as torture are inadmissible, but statements take by coercion and “cruel treatment” can be admitted. The MCA sets the passage of the Detainee Treatment Act (DTA—see December 15, 2005) as a benchmark—statements obtained before the December 30, 2005 enactment of that law can be used, even if the defendant was “coerced,” if a judge finds the statement “reasonable and possessing sufficient probative value.” Statements after that date must have been taken during interrogations that fall under the DTA guidelines. Defendants have the right to examine and respond to evidence seen by the commission, a provision originally opposed by the administration. However, if the evidence is classified, an unclassified summary of that material is acceptable, and classified exculpatory evidence can be denied in lieu of what the MCA calls “acceptable substitutes.” Hearsay evidence is admissible, as is evidence obtained without search warrants. Generally, defendants will not be allowed to inquire into the classified “sources, methods, or activities” surrounding evidence against them. Some human rights activists worry that evidence obtained through torture can be admitted, and the fact that it was obtained by torture, if that detail is classified, will not be presented to the court or preclude the evidence from being used. Public access to the commissions will be quite limited. Many experts claim these commissions are illegal both by US constitutional law and international law. [FindLaw, 10/9/2006]Secret Courts - The military tribunals can be partially or completely closed to public scrutiny if the presiding judge deems such an action necessary to national security. The government can convey such concerns to the judge without the knowledge of the defense. The judge can exclude the accused from the trial if he deems it necessary for safety or if he decides the defendant is “disruptive.” Evidence can be presented in secret, without the knowledge of the defense and without giving the defense a chance to examine that evidence, if the judge finds that evidence “reliable.” And during the trial, the prosecution can at any time assert a “national security privilege” that would stop “the examination of any witness” if that witness shows signs of discussing sensitive security matters. This provision can easily be used to exclude any potential defense witness who might “breach national security” with their testimony. Author and investigative reporter Robert Parry writes, “In effect, what the new law appears to do is to create a parallel ‘star chamber’ system for the prosecution, imprisonment, and elimination of enemies of the state, whether those enemies are foreign or domestic.” [Consortium News, 10/19/2006]Appeals - Guilty verdicts are automatically appealed to a Court of Military Commission Review, consisting of three appellate military justices. The DC Circuit Court of Appeals has extremely limited authority of review of the commissions; even its authority to judge whether a decision is consistent with the Constitution is limited “to the extent [that the Constitution is] applicable.” Types of Crimes - Twenty-eight specific crimes fall under the rubric of the military commissions, including conspiracy (not a traditional war crime), murder of protected persons, murder in violation of the bill of war, hostage-taking, torture, cruel or inhuman treatment, mutilation or maiming, rape, sexual abuse or assault, hijacking, terrorism, providing material support for terrorism, and spying. [FindLaw, 10/9/2006]CIA Abuses - The MCA, responding to the recent Supreme Court decision of Hamdan v. Rumsfeld (see June 30, 2006) that found the CIA’s secret detention program and abusive interrogation practices illegal, redefines and amends the law to make all but the most pernicious interrogation practices, even those defined as torture by the War Crimes Act and the Geneva Conventions, legal. The MCA actually rules that the Geneva Conventions are all but unenforceable in US courts. It also provides retroactive protection under the law to all actions as far back as November 1997. Under the MCA, practices such as waterboarding, stress positioning, and sleep deprivation cannot be construed as torture. [FindLaw, 10/9/2006] The MCA even states that rape as part of interrogations cannot be construed as torture unless the intent of the rapist to torture his victim can be proven, a standard rejected by international law. The MCA provides such a narrow definition of coercion and sexual abuse that most of the crimes perpetrated at Abu Ghraib are now legal. [Jurist, 10/4/2006] Although the MCA seems to cover detainee abuse for all US agencies, including the CIA, Bush says during the signing of the bill, “This bill will allow the Central Intelligence Agency to continue its program for questioning key terrorist leaders and operatives.” International law expert Scott Horton will note, “The administration wanted these prohibitions on the military and not on the CIA, but it did not work out that way.” Apparently Bush intends to construe the law to exempt the CIA from its restrictions, such as they are, on torture and abuse of prisoners. [Salon, 5/22/2007]No Habeas Corpus Rights - Under the MCA, enemy combatants no longer have the right to file suit under the habeas corpus provision of US law. This means that they cannot challenge the legality of their detention, or raise claims of torture and mistreatment. Even detainees who have been released can never file suit to seek redress for their treatment while in US captivity. [FindLaw, 10/25/2006]Retroactive Immunity - The administration added a provision to the MCA that rewrote the War Crimes Act retroactively to November 26, 1997, making any offenses considered war crimes before the MCA is adopted no longer punishable under US law. Former Nixon White House counsel John Dean will write in 2007 that the only reason he can fathom for the change is to protect administration officials—perhaps including President Bush himself—from any future prosecutions as war criminals. Dean will note that if the administration actually believes in the inherent and indisputable powers of the presidency, as it has long averred, then it would not worry about any such criminal liability. [Dean, 2007, pp. 239-240]

John Yoo, a former Justice Department official, celebrates the passage of the Military Commissions Act (see October 17, 2006). Yoo writes that Congress has ordered “the courts, in effect, to get out of the war on terror.” The bill is not so much a victory for the presidency, Yoo writes, as it is a loss for the judiciary, a “stinging rebuke to the Supreme Court. It strips the courts of jurisdiction to hear any habeas corpus claim filed by any alien enemy combatant anywhere in the world.” It supersedes the Court’s ruling in Hamdan v. Rumsfeld (see June 30, 2006), which Yoo calls “an unprecedented attempt by the court to rewrite the law of war and intrude into war policy… [a] stunning power grab.” Now, he writes: “Congress and the president did not take the court’s power grab lying down. They told the courts, in effect, to get out of the war on terror, stripped them of habeas jurisdiction over alien enemy combatants, and said there was nothing wrong with the military commissions. It is the first time since the New Deal that Congress had so completely divested the courts of power over a category of cases. It is also the first time since the Civil War that Congress saw fit to narrow the court’s habeas powers in wartime because it disagreed with its decisions. The law goes farther. It restores to the president command over the management of the war on terror. It directly reverses Hamdan by making clear that the courts cannot take up the Geneva Conventions. Except for some clearly defined war crimes, whose prosecution would also be up to executive discretion, it leaves interpretation and enforcement of the treaties up to the president. It even forbids courts from relying on foreign or international legal decisions in any decisions involving military commissions.” Yoo had previously authored numerous torture memos (see October 4, 2001, November 6-10, 2001, November 20, 2001, December 21, 2001, December 28, 2001, January 9, 2002, January 11, 2002, January 14, 2002, January 22, 2002, January 24-26, 2002, March 13, 2002, July 22, 2002, August 1, 2002, August 1, 2002, and March 14, 2003) and opinions expanding the power of the president (see September 21, 2001, September 25, 2001, September 25, 2001, October 23, 2001, October 23, 2001, and June 27, 2002). [Wall Street Journal, 10/19/2006]

The New York Times pens an editorial issuing a grim warning about the ramifications of the newly passed Military Commission Act (MCA—see October 17, 2006). The editorial calls the law’s stripping of habeas corpus rights for so-called “enemy combatants” “undemocratic.” It criticizes the highly charged rhetoric of the Republicans who attacked Democrats in opposition to the law as part of the Republican Party’s “scare-America-first strategy” for the upcoming midterm elections. The Times notes that President Bush misled the country into believing that the MCA is the only way the country has of adequately putting 9/11 suspects on trial: “The truth is that Mr. Bush could have done that long ago, but chose to detain them illegally at hidden CIA camps to extract information. He sent them to Guantanamo only to stampede Congress into passing the new law. The 60 or so men at Guantanamo who are now facing tribunals—out of about 450 inmates—also could have been tried years ago if Mr. Bush had not rebuffed efforts by Congress to create suitable courts. He imposed a system of kangaroo courts that was more about expanding his power than about combating terrorism.” The editorial criticizes Bush’s new “separate system of justice for any foreigner whom Mr. Bush chooses to designate as an ‘illegal enemy combatant,” one that “raises insurmountable obstacles for prisoners to challenge their detentions [and] does not require the government to release prisoners who are not being charged, or a prisoner who is exonerated by the tribunals.” However, the editorial gives false comfort to its readers by asserting that the MCA “does not apply to American citizens, but it does apply to other legal United States residents.” [New York Times, 10/19/2006]Times Errs in Stating MCA Does Not Apply to US Citizens - Most other mainstream media outlets do not mention the possibility of the MCA applying to US citizens. But on the same day as the Times editorial, author and investigative journalist Robert Parry gives a powerful argument that the MCA can indeed be applied to them. The MCA reads in part, “Any person is punishable as a principal under this chapter who commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission.… Any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States… shall be punished as a military commission… may direct.” The legal meaning of “any person,” Parry notes, clearly includes US citizens, particularly those who may act “in breach of an allegiance or duty to the United States.” Parry asks, “Who has ‘an allegiance or duty to the United States’ if not an American citizen? That provision would not presumably apply to Osama bin Laden or al-Qaeda, nor would it apply generally to foreign citizens. This section of the law appears to be singling out American citizens.” If an American citizen is charged with a crime under the MCA, that citizen, like the foreign nationals currently laboring under the weight of the law, cannot challenge their detention and charges under the habeas corpus provisions of US law, and cannot expect a fair trial. They will not be given the chance to appeal their convictions until they are prosecuted, convicted, and sentenced. And since the MCA defendant has no right to a “speedy trial,” that defendant cannot expect to be granted an appeal in any reasonable length of time. In effect, an American citizen, like a foreign national charged under the MCA, can be imprisoned indefinitely without recourse to the US judiciary. Potential to Jail Media Leakers and Reporters - One aspect of the MCA that has not been widely discussed, Parry notes, is the provision that would allow the incarceration of “any person” who “collects or attempts to collect information by clandestine means or while acting under false pretenses, for the purpose of conveying such information to an enemy of the United States.” That provision is tremendously vague, and could easily be stretched to fit, for example, the whistleblowers who revealed the existence of the NSA’s warrantless wiretapping program to the Times (see December 15, 2005) and the reporters and editors who published the story based on those revelations. [Consortium News, 10/19/2006] Six months later, a Justice Department lawyer will confirm that the Bush administration believes MCA does indeed apply to US citizens (see February 1, 2007).

Keith Olbermann. [Source: Spidered News.com]MSNBC political commentator Keith Olbermann says that the nation has passed a grim milestone with the passage of the Military Commissions Act (MCA) (see October 17, 2006). By accepting this law, Olbermann says, the nation has accepted that to fight the terrorists, the US government must become “just a little bit like the terrorists.” But the ultimate threat to the nation is not terrorists, Olbermann says, it is George W. Bush himself. “We have a long and painful history of ignoring the prophecy attributed to Benjamin Franklin that ‘those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.’” Speaking directly to President Bush, Olbermann continues: “But even within this history we have not before codified the poisoning of habeas corpus (see March 28, 2007), that wellspring of protection from which all essential liberties flow. You, sir, have now befouled that spring. You, sir, have now given us chaos and called it order. You, sir, have now imposed subjugation and called it freedom. For the most vital, the most urgent, the most inescapable of reasons. And—again, Mr. Bush—all of them, wrong.” The MCA gives Bush a “blank check drawn against our freedom to a man who may now, if he so decides, declare not merely any non-American citizens ‘unlawful enemy combatants’ and ship them somewhere—anywhere—but may now, if he so decides, declare you an ‘unlawful enemy combatant’ and ship you somewhere—anywhere” (see September 28, 2006). Habeas corpus is now “gone” for those in the prison camps, Olbermann says, and Geneva Conventions protections are “optional.” He concludes: “The moral force we shined outwards to the world as an eternal beacon, and inwards at ourselves as an eternal protection? Snuffed out. These things you have done, Mr. Bush, they would be ‘the beginning of the end of America.’” [MSNBC, 10/19/2006]

Exercising its new authority under the just-signed Military Commissions Act (MCA—see October 17, 2006), the Bush administration notifies the US District Court in Washington that it no longer has jurisdiction to consider 196 habeas corpus petitions filed by Guantanamo detainees. Many of these petitions cover multiple detainees. According to the MCA, “no court, justice, or judge” can consider those petitions or other actions related to treatment or imprisonment filed by anyone designated as an enemy combatant, now or in the future. The MCA is already being challenged as unconstitutional by several lawyers representing Guantanamo detainees. The MCA goes directly against two recent Supreme Court cases, Rasul v. Bush (see June 28, 2004) and Hamdan v. Rumsfeld (see June 30, 2006), which provide detainees with habeas corpus and other fundamental legal rights. Many Congressional members and legal experts say that the anti-habeas provisions of the MCA are unconstitutional. For instance, Senator Arlen Specter (R-PA) notes that the Constitution says the right of any prisoner to challenge detention “shall not be suspended” except in cases of “rebellion or invasion.” [Washington Post, 10/20/2006] Law professor Joseph Margulies, who is involved in the detainee cases, says the administration’s persistence on the issue “demonstrates how difficult it is for the courts to enforce [the clause] in the face of a resolute executive branch that is bound and determined to resist it.” Vincent Warren of the Center for Constitutional Rights, which represents many of the detainees, expects the legal challenges to the law will eventually wind up before the Supreme Court. [Washington Post, 10/20/2006]

The Director of National Intelligence, John Negroponte, and NSA Director Keith Alexander try to get a lawsuit dismissed that alleges the NSA illegally wiretapped a Saudi charitable organization (see February 28, 2006). The organization, the Al Haramain Islamic Foundation, is presenting a classified US document as proof of the illegal wiretapping. Invoking 'State Secrets' Privilege - In late 2006, Negroponte and Alexander tell the presiding judge, US District Judge Garr King, that in order to defend itself, the government would have to disclose “state secrets” (see March 9, 1953) that would expose US anti-terrorism efforts. This same argument will be reiterated in July 2007, when government lawyers say, “Whether plaintiffs were subjected to surveillance is a state secret, and information tending to confirm or deny that fact is privileged.” The judge will hear arguments for and against dismissing the case on August 15, 2007. [Associated Press, 8/5/2007]Judicial Examination - King, in Portland, Oregon, examined the document for himself, and read classified briefs supplied by the Justice Department. Upon reading the briefs, King met with government lawyers to discuss turning over yet more documents in discovery—a decision unlikely to have been taken had King not believed the evidence did not show that the Al Haramain plaintiffs were, in fact, monitored. And, under FISA, had the surveillance been lawful and court-ordered, King would have been legally constrained to dismiss the lawsuit, since according to that law, plaintiffs can only sue if no warrant was ever issued for the alleged surveillance. “If there was a FISA warrant, the whole case would have crumbled on the first day,” says plaintiff attorney Thomas Nelson, “It’s pretty obvious from the government’s conduct in the case, there was no warrant.” 'Inherent Authority' of President - Justice Department lawyers rely on the argument that the president has the inherent authority to order surveillance of suspected terrorists with or without warrants, and that to judge the president’s decision would reveal national secrets that would alert terrorists to government anti-terrorist actions, thereby mandating that this and other lawsuits be dismissed. Consolidation of Lawsuits - An August 2006 court ruling ordering that the Al Haramain case be consolidated with 54 other NSA-related lawsuits, under US District Court Judge Vaughn Walker, damaged the government’s argument that it cannot be sued in court. Walker has presided over the year-old class-action lawsuit brought before his court by the Electronic Frontier Foundation against AT&T for the telecom firm’s cooperation with the NSA program (see January 31, 2006); Walker ruled in July 2006 that the case would proceed, against government requests that it be thrown out because of national security requirements. Walker ruled that because the government had already admitted to the existence of the program, the state secrets privilege does not apply. (The Justice Department is appealing Walker’s decision.) As for Al Haramain, its lawyers want that case to be adjudicated separately, because the court has sufficient evidence to decide on the case without waiting for the appellate court decision. Another lawyer for the plaintiffs, Jon Eisenberg, tells Walker in February 2007, “You need only read the statutes to decide, ‘Does the president have the right to do this without a warrant?’” Walker has yet to rule on that request. [Wired News, 3/5/2007]

Congress passes a law prohibiting the US from transferring nuclear technology to India if that nation violates international nonproliferation guidelines. President Bush signs the law, then issues a signing statement saying that since only he has the right to determine US foreign policy, he views the legal ban as nothing more than “advisory.” [Savage, 2007, pp. 239]

The Asian Law Caucus (ALC) receives over twenty complaints from Northern California residents reporting excessive and repeated screenings by US Customs and Border Protection agents upon their entering the country. The residents say they have been interrogated about their families, religious practices, volunteer activities, political beliefs, and political associations when they returned from traveling abroad, regardless of their First Amendment rights. The residents say their books, business cards, handwritten notes, personal photos, laptop computer files, and cell phone directories were examined and sometimes copied. When they complained, some of them were told, according to the ALC, “This is the border, and you have no rights.” [Electronic Frontier Foundation, 2/7/2008; Electronic Frontier Foundation, 2/7/2008]Interrogation at the Border - Nabila Mango, a US citizen from San Francisco, returns from a trip to Jordan in December 2007. She will say she is told by customs officials at San Francisco International Airport to list every person she met and every place she slept. Her Arabic music books, business cards, and cell phone are examined, and she believes some of her documents are copied. [Electronic Frontier Foundation, 2/7/2008] Her daughter tries repeatedly to call her on her cell phone during the interrogation, but Mango finds that customs officials erased the records of her calls. [Washington Post, 2/7/2008] “In my 40 years in this country, I have never felt as vulnerable as I did during that interrogation,” Mango will say. “I want to find out whether my government is keeping files on me and other Americans based on our associations and ideas.” A California citizen, Amir Khan, will also say he is stopped and interrogated every time he returns to the country. He has his laptop, cell phone, and personal notebooks searched. He is never told why he is being singled out. “One customs officer even told me that no matter what I do, nothing would improve,” he will say. “Why do I have to part with my civil liberties each time I return home?” [Electronic Frontier Foundation, 2/7/2008] Software engineer Kamran Habib, a permanent US resident, has his laptop and cell phone searched three times in 2007. Now, Habib says, “every time I travel, I basically clean out my phone. It’s better for me to keep my colleagues and friends safe than to get them on the list as well.” Search and Seizure - Maria Udy, a marketing executive in Bethesda, Maryland, will say her company laptop is seized by a federal agent as she attempts to fly from Washington’s Dulles International Airport to London. Udy, a British citizen, is told by the agent that he has “a security concern” with her. “I was basically given the option of handing over my laptop or not getting on that flight,” she will recall. Udy is told that it is standard procedure to keep the computer for 10 to 15 days; over a year later, her laptop will not have been returned, and she will not be given any explanation. A tech engineer who wishes to remain anonymous will say he has a similar experience in the same airport months earlier. The engineer, a US citizen, says a federal agent requires him to open up his laptop and type in his password. “This laptop doesn’t belong to me,” he protests. “It belongs to my company.” He has little choice; he logs on, and the agent copies down every Web site he had visited on the laptop. The Association of Corporate Travel Executives (ACTE)‘s Susan Gurley will say her organization has filed its own FOIA request to find out what happened to seized laptops and other electronic devices. “Is it destroyed right then and there if the person is in fact just a regular business traveler?” she asks. “People are quite concerned. They don’t want proprietary business information floating, not knowing where it has landed or where it is going. It increases the anxiety level.” The ALC’s Shiran Sinnar says that by examining the websites people visit and the phone numbers they store, “the government is going well beyond its traditional role of looking for contraband and really is looking into the content of people’s thoughts and ideas and their lawful political activities.” Legal experts say that if conducted inside the country, such searches would require a warrant and probable cause. The government insists that a laptop is legally the same as a suitcase, and can be opened and examined essentially at will. Law professor David Cole disagrees: “It’s one thing to say it’s reasonable for government agents to open your luggage. It’s another thing to say it’s reasonable for them to read your mind and everything you have thought over the last year. What a laptop records is as personal as a diary but much more extensive. It records every website you have searched. Every email you have sent. It’s as if you’re crossing the border with your home in your suitcase.” [Washington Post, 2/7/2008]

Attorney General Alberto Gonzales sends a letter to the Senate Judiciary Committee informing it that the lawsuit against the administration’s warrantless wiretapping program (see August 17, 2006) is moot—the National Security Agency will now operate under the aegis of the Foreign Intelligence Surveillance Court (FISC) in its wiretaps. One of the FISC judges, Gonzales writes, has issued an “innovative” and “complex” order that allows the NSA to continue doing what it had been doing with the overall approval of the court, or at least the approval of the single FISC judge. Gonzales does not go into detail about the judge’s ruling, but the administration intensifies its attack on the lawsuit, asking an appeals court to set the previous ruling aside in light of the new FISC protocol, and even to erase the ruling from judicial history as a matter of “public interest.” The appeals court votes 2-1 to set aside the previous ruling; the majority opinion finds that the state secrets privilege prevents the courts from learning whether the plaintiffs in the case had the standing to sue. [Savage, 2007, pp. 207]

In a second day of testimony (see January 17, 2007), Attorney General Alberto Gonzales tells the Senate Judiciary Committee that the president has always had the inherent authority to bypass or ignore statutory law if he is acting in the interest of national security. Gonzales is referring to a recent Bush administration decision to use a sympathetic FISC judge to sign off on the warrantless wiretapping program (see January 17, 2007). “We commenced down this road five years ago because of a belief that we could not do what we felt was necessary to protect this country under FISA [the Foreign Intelligence Surveillance Act],” Gonzales testifies. “That is why the president relied upon his inherent authority under the Constitution. My own judgment is, the president has shown maturity and wisdom here in this particular decision. He recognizes that there is an inherent reservoir of inherent power that belongs to every president. You use it only when you have to. In this case, we don’t have to [anymore].” Yale law professor Jack Balkin strenuously disagrees. He points to a “remarkable similarity between the administration’s behavior in the Padilla case (see October 9, 2005 and December 21, 2005) and its behavior here.… Once again, the goal is to prevent a court from stating clearly that the president acted illegally and that his theories of executive power are self-serving hokum.” Instead of going to Congress for the authority to conduct a warrantless wiretapping program, Balkin writes that the administration used FISA’s supposed deficiencies “as an excuse to disregard the law, so that it could make claims of unbridled presidential authority to ignore FISA.” [Savage, 2007, pp. 207-208; Jack Balkin, 1/18/2007]

The Bush administration confirms that it believes US citizens can be designated as “enemy combatants” under the Military Commissions Act (MCA—see October 17, 2006). The confirmation comes during the trial of Ali Saleh Kahlah al-Marri, a Qatari and the only person on the American mainland being held as an enemy combatant. Al-Marri, currently held at the Charleston, South Carolina Naval brig, is a legal US resident accused of being a sleeper agent for al-Qaeda (see September 10, 2001). He was arrested in December 2001, while living with his family and studying computer science at Bradley University in Illinois. Al-Marri is charged, not with any direct terrorist activities, but with credit card fraud and lying to federal agents. He is challenging his indefinite detention in federal court, and the government is using the MCA to argue that al-Marri has no status in the courts because of his designation as an enemy combatant. One of the appellate court judges, Roger Gregory, asks Justice Department lawyer David Salmons, “What would prevent you from plucking up anyone and saying, ‘You are an enemy combatant?’” Salmons responds that the government can do just that, without interference from the courts, and adds, “A citizen, no less than an alien, can be an enemy combatant.” Gregory and the second of the three appellate judges, Diana Gribbon Motz, seem uncomfortable with the law’s provisions that the US judiciary has no role in such designations. When Motz asks Salmons about the difference between nations making war and individuals committing acts of terrorism, Salmons retorts with a familiar, and long-disputed, argument that the US Congress gave the government the right to detain terrorist suspects without charge or recourse to the judiciary when it granted the administration the right to use military force against terrorists after the 9/11 attacks (see September 14-18, 2001). Theoretically Declaring War on PETA - Motz is skeptical of the argument, and asks a series of hypothetical questions about just what organizations or individuals President Bush could designate as enemy combatants. Using the animal rights group People for the Ethical Treatment of Animals (PETA) as an example, Motz asks, “Could the president declare war on PETA?” Salmons says the question is unrealistic, but refuses to say that Bush could not do so if he chose. The Bush administration is careful in its use of the enemy combatant designation, Salmons says, therefore, “The representative of PETA can sleep well at night.” [New York Times, 2/2/2007]Ignoring Constitutional Concept of 'Inalienable Rights' - Author and investigative journalist Robert Parry notes that in the al-Marri case, the Bush administration is arguing against the concept of “inalienable,” or “unalienable,” rights as granted by the Constitution and the Bill of Rights. According to the administration, as long as the US is embroiled in what it calls the “war on terror,” Bush can use his “plenary,” or unlimited, executive powers to essentially waive laws and ignore Constitutional rights if he so chooses. Parry writes that “since the ‘war on terror’ will go on indefinitely and since the ‘battlefield’ is everywhere, Bush is asserting the president’s right to do whatever he wants to whomever he wants wherever the person might be, virtually forever.” Parry concludes, “The Justice Department’s arguments in the [al-]Marri case underscore that Bush still sees himself as a modern-day version of the absolute monarch who gets to decide which rights and freedoms his subjects can enjoy and which ones will be denied.” [Consortium News, 2/3/2007]

ACLU advertisement against the Military Commissions Act. [Source: ACLU]The American Civil Liberties Union strongly objects to the stripping of habeas corpus rights contained within the Military Commissions Act (MCA—see October 17, 2006). The ACLU observes, “Habeas corpus isn’t a fancy legal term. It’s the freedom from being thrown in prison illegally, with no help and no end in sight. No president should ever be given the power to call someone an enemy, wave his hand, and lock them away indefinitely. The Founders made the president subject to the rule of law. They rejected dungeons and chose due process.” [American Civil Liberties Union, 3/28/2007]

Eric Lichtblau. [Source: PBS]Jack Goldsmith, the former head of the Justice Department’s Office of Legal Counsel (see October 6, 2003 and June 17, 2004), is subpoenaed to testify in the Justice Department’s investigation of the leaks that resulted in the New York Times’s dramatic disclosure of the NSA domestic wiretapping program (see December 15, 2005). Goldsmith had spoken to one of the two Times reporters, Eric Lichtblau, in October 2004, three months after his resignation from the OLC, but lied to Lichtblau, saying he knew nothing of the program. He immediately alerted his former boss, Deputy Attorney General James Comey, of the interview. 'Stunned' By Subpoena - In his September 2007 book The Terror Presidency, Goldsmith will recall being “stunned” at the subpoena, though the two FBI agents who give him the subpoena—in public—say that they don’t suspect him as the source of the leak. Goldsmith later recalls, “What angered me most about the subpoena I received on that wet day in Cambridge was not the expense of lawyers or a possible perjury trap, but rather the fact that it was Alberto Gonzales’s Justice Department that had issued it. As [the two FBI agents] knew, I had spent hundreds of very difficult hours at OLC, in the face of extraordinary White House resistance, trying to clean up the legal mess that then-White House Counsel Gonzales, David Addington, John Yoo, and others had created in designing the foundations of the Terrorist Surveillance Program. It seemed rich beyond my comprehension for a Gonzales-led Department of Justice to be pursuing me for possibly illegal actions in connection with the Terrorist Surveillance Program….” Supported Surveillance of Terrorism - Goldsmith will continue, “I was not opposed to the leak investigation itself or to vigorous surveillance of terrorists. I agreed with President Bush that the revelations by [James] Risen and Lichtblau had alerted our enemies, put our citizens at risk, and done ‘great harm’ to the nation. I hoped the FBI would find and punish the leakers, and I had spent many hours trying to help them do so. I also shared many of the White House’s concerns with the Foreign Intelligence Surveillance Act (FISA), the 1978 domestic wiretapping law that required executive officers, on pain of jail, to get a court warrant before wiretapping suspected enemies in the United States. We were at war with terrorists who were armed with disposable cell phones and encrypted e-mails buried in a global multibillion-communications-per-day system. It seemed crazy to require the commander in chief and his subordinates to get a judge’s permission to listen to each communication under a legal regime that was designed before technological revolutions brought us high-speed fiber-optic networks, the public Internet, e-mail, and ten-dollar cell phones. But I deplored the way the White House went about fixing the problem. ‘We’re one bomb away from getting rid of that obnoxious [FISA] court,’ Addington had told me in his typically sarcastic style during a tense White House meeting in February of 2004 (see February 2004). The vice president’s counsel, who was the chief legal architect of the Terrorist Surveillance Program, was singing the White House tune on FISA. He and the vice president had abhorred FISA’s intrusion on presidential power ever since its enactment in 1978. After 9/11 they and other top officials in the administration dealt with FISA the way they dealt with other laws they didn’t like: They blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations. My first experience of this strict control, in fact, had come in a 2003 meeting when Addington angrily denied the NSA inspector general’s request to see a copy of OLC’s legal analysis in support of the Terrorist Surveillance Program. Before I arrived in OLC, not even NSA lawyers were allowed to see the Justice Department’s legal analysis of what NSA was doing.” Difficult to Justify Legally - Goldsmith will write of the difficulties he found in finding legal justifications for the program. “I first encountered the program in 2003-2004, long after it had been integrated into the post-9/11 counterterrorism architecture. Putting it legally aright at that point, without destroying some of the government’s most important counterterrorism tools, was by far the hardest challenge I faced in government. And the whole ordeal could have been avoided.…In 2004, I and others in the Department of Justice had begun the process of working with the FISA court to give the commander in chief much more flexibility in tracking terrorists. From the beginning the administration could have taken these and other steps to ramp up terrorist surveillance in indisputably lawful ways that would have minimized the likelihood of a devastating national security leak. But only if it had been willing to work with the FISA court or Congress. The White House had found it much easier to go it alone, in secret.” [Slate, 9/10/2007]

President Bush issues a classified presidential directive updating the nation’s secretive post-disaster “National Continuity Policy.” The highly classified Continuity of Government (COG) and Continuity of Operations (COOP) plans are designed to keep the government functioning in times of national emergency. Bush’s presidential directive, officially titled National Security Presidential Directive 51 (NSPD-51)/Homeland Security Presidential Directive 20 (HSPD-20), is described by the Boston Globe as a “special kind of executive order that can be kept secret.” The non-classified portion of the directive is posted quietly on the White House website, with no explanation. The document states, “It is the policy of the United States to maintain a comprehensive and effective continuity capability composed of Continuity of Operations and Continuity of Government programs in order to ensure the preservation of our form of government.” The directive orders executive branch officials to establish a wide range of special protocols to keep the government running during an emergency. The directive stresses the importance of relocating to alternative facilities, delegating powers to emergency leaders, and securing and allocating the nation’s vital resources. According to NSPD-51, the special emergency plans should be ready to go at a moment’s notice, and incorporated into the daily operations of all executive departments and agencies. The special emergency protocols are designed for any “catastrophic emergency,” which NSPD-51 defines as “any incident, regardless of location, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the US population, infrastructure, environment, economy, or government functions.” Incidents falling into this category would not be limited to hostile attacks, the document makes clear, but would also include “localized acts of nature” and “accidents.” The new plan centralizes post-disaster planning in the White House, and appears to limit the powers of the legislative and judicial branches in times of emergency. The directive creates the position of national continuity coordinator, which is to be held by the assistant to the president for homeland security and counterterrorism. The secretary of homeland security and the national continuity coordinator are to oversee the development and implementation of the continuity plans. [Washington Post, 5/10/2007; US President, 5/14/2007 ; Progressive, 5/18/2007; Boston Globe, 6/2/2007]Conservative Commentators Warn of 'Dictatorial Powers' - Conservative commentator Jerome Corsi says the directive appears to give the president a legal mechanism to seize “dictatorial powers” since it would not require consultation with Congress about when to invoke emergency powers, or when to relinquish them. It is also noted that the new plan does not explicitly acknowledge the National Emergencies Act, which gives Congress the authority to override the president’s determination that a national emergency still exists. James Carafano, a homeland security specialist at the Heritage Foundation, says that the lack of an explanation for the unexpected directive is “appalling.” [Boston Globe, 6/2/2007]

Director of National Intelligence Mike McConnell asks Congress to allow the government to monitor overseas phone calls without warrants. In a letter to the chairman of the House Intelligence Committee, Silvestre Reyes (D-TX), McConnell says that Congress must “act immediately” to change the law, which he says now requires burdensome court orders that hinder the administration’s efforts to combat terrorism. McConnell is advocating a raft of changes in the Foreign Intelligence Surveillance Act (FISA) proposed by the Bush administration; Congress is studying the law pending any possible amendments. McConnell writes that “clarifications are urgently needed” in the law to enable the use of “our capabilities to collect foreign intelligence about foreign targets overseas without requirements imposed by an out-of-date FISA statute,” and says he has “deep concern[s]” about the nation’s ability to counter terrorist threats. At issue are overseas phone calls between two international sources, but which travel through US-based terminals or switches. Peter Hoekstra (R-MI), the ranking Republican on the committee, is also pushing for the changes in FISA, calling the proposals “simple fix[es]” that would expedite the US’s ability to monitor terrorist organizations without adversely affecting US civil liberties. But fellow committee member John Tierney (D-MI) disagrees, saying that FISA “already allows for foreign-to-foreign communications to be intercepted” but that the administration “has chosen to say that it wants a warrant nonetheless.” [Washington Post, 7/28/2007]

Mitch McConnell. [Source: US Senate]President Bush signs the controversial Protect America Act (PAA) into law. The bill, which drastically modifies the Foreign Intelligence Surveillance Act (FISA) of 1978 (see 1978), was sponsored by two Senate Republicans, Mitch McConnell (R-KY) and Christopher Bond (R-MO), but written by the Bush administration’s intelligence advisers. [US Senate, 8/5/2007; Washington Post, 8/5/2007] It passed both houses of Congress with little debate and no hearings (see August 1-4, 2007). “This more or less legalizes the NSA [domestic surveillance] program,” says Kate Martin, director of the Center for National Security Studies. [New York Times, 8/6/2007] Slate’s Patrick Radden Keefe adds ominously, “The Foreign Intelligence Surveillance Act is now dead, and it’s never coming back.” [Slate, 8/6/2007] The PAA expires in six months, the only real concession Congressional Democrats were able to secure. Though the Bush administration and its allies in Congress insist that the law gives the government “the essential tools it needs” to conduct necessary surveillance of foreign-based terrorists while protecting Americans’ civil liberties, many Democrats and civil liberties organizations say the bill allows the government to wiretap US residents in communication with overseas parties without judiciary or Congressional oversight. Bush calls the bill “a temporary, narrowly focused statute to deal with the most immediate shortcomings in the law” that needs to be expanded and made permanent by subsequent legislation. The administration says that the lack of judiciary oversight in the new law will be adequately covered by “internal bureaucratic controls” at the National Security Agency. [Associated Press, 8/5/2007; Washington Post, 8/5/2007]Reining in FISA - The PAA allows FISA to return “to its original focus on protecting the rights of Americans, while not acting as an obstacle to conducting foreign intelligence surveillance on foreign targets located overseas.” Before the PAA, the White House says, FISA created unnecessary obstacles in allowing US intelligence to “gain real-time information about the intent of our enemies overseas,” and “diverted scarce resources that would be better spent safeguarding the civil liberties of people in the United States, not foreign terrorists who wish to do us harm.” The PAA no longer requires the government to obtain FISA warrants to monitor “foreign intelligence targets located in foreign countries” who are contacting, or being contacted by, US citizens inside US borders. FISA will continue to review the procedures used by US intelligence officials in monitoring US citizens and foreign contacts by having the attorney general inform the FISA Court of the procedures used by the intelligence community to determine surveillance targets are outside the United States.” Allows Third Parties to Assist in Surveillance, Grants Immunity - The PAA also allows the director of national intelligence and the attorney general to secure the cooperation of “third parties,” particularly telecommunications firms and phone carriers, to “provide the information, facilities, and assistance necessary to conduct surveillance of foreign intelligence targets located overseas.” It provides these firms with immunity from any civil lawsuits engendered by such cooperation. Short Term Legislation - The White House says that Congress must pass further legislation to give telecommunications firms permanent and retroactive immunity against civil lawsuits arising from their cooperation with the government’s domestic surveillance program. [White House, 8/6/2006]Temporary Suspension of the Constitution? - Representative Rush Holt (D-NJ), a member of the House Intelligence Committee, says: “I’m not comfortable suspending the Constitution even temporarily. The countries we detest around the world are the ones that spy on their own people. Usually they say they do it for the sake of public safety and security.” [Washington Post, 8/5/2007]

Hambali, circa 2008. [Source: US Defense Department]Fourteen “high value” detainees held by the US in Guantanamo Bay (see March 9-April 28, 2007) are ruled to be “enemy combatants.” The detainees include 9/11 mastermind Khalid Shaikh Mohammed, 9/11 coordinator Ramzi bin al-Shibh, Jemaah Islamiyah leader Hambali, and al-Qaeda leaders Khallad bin Attash and Abd al-Rahim al-Nashiri. However, a judge had previously ruled that designating a detainee an “enemy combatant” was meaningless and that a person designated an enemy combatant could not be tried under the Military Commissions Act (see June 4, 2007). The Washington Post comments, “It is unclear if these men can be tried at military commissions without a change in the law or a newly designed review.” [Washington Post, 8/10/2007]

Michael Mukasey. [Source: US Department of Justice]After two months of controversy, and a round of sporadically contentious Senate confirmation hearings, former judge Michael Mukasey narrowly wins the Senate’s approval to become the next attorney general, by an almost-party line 53-40 vote. Musakey replaces Alberto Gonzales, who resigned under fire in September 2007. Many Democrats vote against Mukasey because of his refusal to categorize the interrogation technique of waterboarding as torture, and his refusal to say that he would oppose President Bush’s insistence on eavesdropping on US citizens. Some Democrats took comfort in Mukasey’s characterization of waterboarding as “repugnant,” but others were not pleased by his refusal to say that the practice constitutes torture. Two key Democrats on the Senate Judiciary Committee, Charles Schumer (D-NY) and Dianne Feinstein (D-CA) refused to block Mukasey from going to the Senate for a confirmation vote. Both indicated that they reluctantly supported Mukasey’s nomination because the Justice Department needs an immediate infusion of leadership—Schumer called the department “adrift and rudderless” and in need of “a strong and independent leader”—and they feared if Mukasey was not confirmed, President Bush would put someone worse in the position as an interim appointment. [CNN, 11/8/2007] Schumer says he eventually decided to vote for Mukasey after the judge said “if Congress passed further legislation in this area, the president would have no legal authority to ignore it and Judge Mukasey would enforce it.” But Schumer’s colleague, Ted Kennedy (D-MA), is unimpressed. “Enforcing the law is the job of the attorney general,” Kennedy says. “It’s a prerequisite—not a virtue that enhances a nominee’s qualifications.” Ben Cardin (D-MD) wonders just how far, and how specifically, Congress will have to go to outlaw torture. He asks, “Are we going to have to outlaw the rack because there’s a question whether the rack is torture in this country?” [National Public Radio, 11/7/2007] Arlen Specter (R-PA), the committee’s ranking Republican, calls Mukasey “ethical, honest [and] not an intimate of the president.” [CNN, 11/8/2007] Mukasey is quietly sworn in only hours after winning the Senate vote. [National Public Radio, 11/9/2007] All four Democratic senators running for president—Hillary Clinton (D-NY), Barack Obama (D-IL), Joseph Biden (D-DE), and Christopher Dodd (D-CT)—have said they oppose Mukasey’s nomination. Obama calls Mukasey’s refusal to label waterboarding as torture “appalling,” and notes that Mukasey’s belief that the president “enjoys an unwritten right to secretly ignore any law or abridge our constitutional freedoms simply by invoking national security” disqualify him for the position. The other candidates make similar statements. [Fox News, 10/30/2007] However, none of them actually show up to cast their vote for or against Mukasey. John McCain (R-AZ), another senator running for president, also does not vote. [Associated Press, 11/8/2007] Three days after Mukasey’s confirmation, the New York Times writes a blistering editorial excoriating both the Bush administration and the compliant Senate Democrats for allowing Mukasey to become attorney general (see November 11, 2007).

George W. Bush delivering his State of the Union address. [Source: US Department of Defense]President Bush gives his final State of the Union address. During the speech, Bush calls on Congress to immediately pass legislation awarding retroactive immunity to US telecommunications firms that may have illegally cooperated with the NSA and other US intelligence agencies to eavesdrop on the electronic communications of US citizens (see November 7-8, 2007). Bush says of those agencies: “[O]ne of the most important tools we can give them is the ability to monitor terrorist communications. To protect America, we need to know who the terrorists are talking to, what they are saying, and what they’re planning. Last year, Congress passed legislation to help us do that. Unfortunately, Congress set the legislation to expire on February the 1st. That means if you don’t act by Friday, our ability to track terrorist threats would be weakened and our citizens will be in greater danger. Congress must ensure the flow of vital intelligence is not disrupted.” He then says of the telecoms involved in domestic surveillance: “Congress must pass liability protection for companies believed to have assisted in the efforts to defend America. We’ve had ample time for debate. The time to act is now.” (In this statement, Bush refuses to admit that the telecoms have actually cooperated with US surveillance operations; two days later, Vice President Dick Cheney will make just such an admission (see January 30, 2008).) [White House, 1/28/2008; New York Times, 1/29/2008] Bush says that while the nation is at risk of terrorist attack if this legislation is not enacted, he will veto such legislation if it does not contain provisions to protect the telecom industry from civil and criminal prosecution. Harpers commentator Scott Horton calls Bush’s rhetoric a “squeeze play… an exercise in fear-mongering of the purest, vilest sort.” Horton boils down Bush’s comments to say, “‘If Congress doesn’t give me just what I want, then Congress will be responsible for whatever attacks befall the country,’ he reasons.” [Harper's, 1/29/2008]

Vice President Dick Cheney calls in to conservative radio host Rush Limbaugh’s broadcast. Cheney argues in favor of the administration’s push for Congress to grant retroactive immunity to telecommunications firms suspected of cooperating with US intelligence agencies in illegally monitoring the telephone and e-mail communications of US citizens (see November 7-8, 2007). In his recent State of the Union address, President Bush made the same call, but refused to admit that the telecoms had actually participated in such actions (see January 28, 2008). Cheney is more forthcoming. He tells Limbaugh that the proposed legislation is about “retroactive liability protection for the companies that have worked with us and helped us prevent further attacks against the United States.” [MSNBC, 1/31/2008]

MSNBC commentator Keith Olbermann lambasts President Bush’s State of the Union call to protect US telecom firms from liability in their cooperation with government surveillance of US citizens (see January 28, 2008): “President Bush has put protecting the telecom giants from the laws ahead of protecting you from the terrorists. He has demanded an extension of the FISA law—the Foreign Intelligence Surveillance Act—but only an extension that includes retroactive immunity for the telecoms who helped him spy on you.… This, Mr. Bush, is simple enough even for you to understand: If Congress approves a new FISA act without telecom immunity and sends it to your desk and you veto it—you, by your own terms and your own definitions, you will have just sided with the terrorists. Ya gotta have this law, or we’re all gonna die. But you might veto this law!” Olbermann terms Bush’s call for telecom immunity a “shameless, breathless, literal, textbook example of fascism—the merged efforts of government and corporations who answer to no government.” With heavy sarcasm Olbermann says: “[The telecom immunity] isn’t evil, it’s ‘to protect America.’ It isn’t indiscriminate, it’s ‘the ability to monitor terrorist communications.’ It isn’t unlawful, it’s just the kind of perfectly legal thing, for which you happen to need immunity.… This is not a choice of protecting the telecoms from prosecution, or protecting the people from terrorists, sir. It is a choice of protecting the telecoms from prosecution, or pretending to protect the people from terrorists.… The eavesdropping provisions of FISA have obviously had no impact on counter-terrorism, and there is no current or perceived terrorist threat, the thwarting of which could hinge on an e-mail or a phone call going through room 641-A at AT&T in San Francisco next week or next month. Because if there were, Mr. Bush, and you were to, by your own hand, veto an extension of this eavesdropping, and some terrorist attack were to follow, you would not merely be guilty of siding with the terrorists, you would not merely be guilty of prioritizing the telecoms over the people, you would not merely be guilty of stupidity, you would not merely be guilty of treason, but you would be personally, and eternally, responsible.” [MSNBC, 1/31/2008]

MSNBC host Keith Olbermann reveals what may be a personal stake in the Bush administration’s push for immunity for telecommunications companies who helped the NSA spy on Americans (see January 28, 2008). Attorney General Michael Mukasey’s son Marc Mukasey is a partner in the law firm of Bracewell & Giuliani (the same Rudolph Giuliani who up until recently was a candidate for the Republican nomination for president). Marc Mukasey is one of the lawyers representing Verizon, one of the telecom firms being sued for cooperating with the government’s surveillance program (see May 12, 2006 and June 26, 2006). Olbermann says of the Mukasey-Giuliani connection: “Now it begins to look like the bureaucrats of the Third Reich trying to protect the Krupp family industrial giants by literally re-writing the laws for their benefit. And we know how that turned out: Alfred Krupp and eleven of his directors were convicted of war crimes at Nuremburg.” [MSNBC, 1/31/2008]

Admiral Mike McConnell, the director of national intelligence, admits during a radio interview that the main issue over the renewal of the Protect America Act (PAA) (see August 5, 2007) is not the security and safety of the nation, but the need to extend liability immunity to the nation’s telecommunications firms. In recent days, President Bush has said that unnamed terrorists are planning attacks on the US that will make 9/11 “pale by comparison,” and the only way to stop those attacks is to renew the PAA with new provisions that will grant telecommunications firms such as BellSouth, Verizon, and AT&T retroactive immunity from prosecution. Those firms are accused of illegally aiding the government in electronically monitoring the telephone and e-mail conversations of US citizens (see February 5, 2006). The PAA expires on February 16, but the government can operate under its provisions for another year. McConnell tells a National Public Radio reporter that the biggest issue surrounding the legislation is liability protection for the telecom firms. “We can’t do this mission without their help,” he says. “Currently there is no retroactive liability protection for them. They’re being sued for billions of dollars.” They did not break the law, McConnell asserts, but the lawsuits are curtailing their willingness to cooperate with the government. “The Senate committee that passed the bill examined the activities of the telecom companies and concluded they were not violating the law,” he says. By not extending retroactive immunity, McConnell says, “we’d lose the capability to protect the country.” [National Public Radio, 2/15/2008] Two days later, McConnell echoes his unusually frank admission. Interviewed on Fox News, he says: “Let me make one other point just—very important. The entire issue here is liability protection for the carriers. And so the old law and extended law are an expired law if we don’t have retroactive liability protection for the carriers. They are less inclined to help us, and so their support.… And therefore, we do not have the agility and the speed that we had before to be able to move and try to capture [terrorists’] communications to thwart their planning.” He also implies that the argument against granting immunity—if the telecoms’ actions were legal in the first place then they wouldn’t need immunity—is valid. Interviewer Chris Wallace says: “Isn’t the central issue here that you’ve lost your power to compel telecommunications companies to cooperate with you and also your ability to offer them legal immunity? Again, the Democrats would say, ‘Look, if the cooperation is legal, they don’t need legal immunity.’” McConnell replies: “Exactly right. The issue now is there’s uncertainty because the law has expired and the law of August, the Protect America Act, allowed us to compel—compel—support from a private carrier. That’s now expired.… [T]he private sector, although willingly helped us [sic] in the past, are now saying, ‘You can’t protect me. Why should I help you?’” Interestingly, after all of the talk of imminent terror attacks, when Wallace asks, “Do you believe al-Qaeda is more of a threat now than any time since 9/11?” McConnell says flatly: “No. Following 9/11, al-Qaeda’s leadership and operatives were degraded probably two-thirds or three-quarters.” House Majority Leader Steny Hoyer (D-MD) responds that the administration’s attempt to tie the renewal of the PAA into the threat of future terrorist attacks is “wrong, divisive and nothing but fear-mongering.” Senator Edward Kennedy (D-MA) adds that McConnell’s “latest comments show yet again the shamelessness of the administration’s tactics.” [Fox News, 2/17/2008]

With the Protect America Act expiring amid warnings of imminent terror attacks from Bush administration officials and Congressional Republicans (see February 16, 2008 and February 15-17, 2008), most experts outside the administration say its expiration will have little effect on national security. Under the PAA, the government could wiretap domestic phones and computer systems without a warrant, but the legislation was considered a temporary stopgap measure to give Congress and the White House a chance to work together to create new, permanent regulations covering domestic surveillance. The government’s domestic wiretapping program now reverts to the procedures followed for 30 years under the Foreign Intelligence Surveillance Act (FISA), which requires warrants from the FISA Court to engage in surveillance inside the US. Despite administration claims that the paperwork for those warrants is too cumbersome, many experts say that FISA gives the government the tools it needs to spy on terrorists. Timothy Lee from the conservative Cato Institute recalls that the last time FISA was revamped, after the 9/11 attacks, President Bush praised the overhaul, saying it “recognizes the realities and dangers posed by the modern terrorist.” Lee observes: “Those are the rules we’ll be living under after the Protect America Act expires this weekend. There’s no reason to think our nation will be in any more danger in 2008 than it was in 2002, 2003, 2004, 2005, or 2006.” Ben Wittes of the centrist Brookings Institution says that because existing warrantless surveillance begun under the temporary laws could continue for up to a year, the “sky is not falling at all.” Wittes says he is “somewhat bewildered by the apocalyptic rhetoric” of the Bush administration. Many experts note that emergency FISA warrants can, and have, been granted in a matter of minutes, and government eavesdroppers have up to three days to wiretap a phone or computer and then retroactively acquire a warrant. But administration officials have a different view. White House press secretary Dana Perino says the PAA’s expiration “will harm our ability to conduct surveillance to detect new threats to our security, including the locations, intentions and capabilities of terrorists and other foreign intelligence targets abroad.” Perino says that the PAA “temporarily closed” a “dangerous intelligence gap.” House Majority Leader Steny Hoyer (D-MD) calls that warning “categorically false.” Hoyer continues: “In fact, a wide range of national security experts has made clear that the president and our intelligence community have all the tools they need to protect our nation, if the Protect America Act—temporary legislation passed last August—expires.… We believe the president’s rhetoric is inaccurate and divisive, and an attempt to stampede the House of Representatives to rubber-stamp legislation by stoking the fears of the American people. We will not be stampeded.” [Washington Times, 2/16/2008]

The Protect America Act (PAA—see August 5, 2007) expires today. Congress has refused to pass a reauthorization of the legislation that contains a provision to grant retroactive immunity to US telecommunications firms to protect them from lawsuits arising from their previous cooperation with government eavesdroppers (see February 5, 2006). President Bush has warned for days that by refusing to reauthorize the bill, Congress is leaving the US “more in danger of attack.” The surveillance elements of the PAA will continue in force for another year after its passage even as the PAA itself expires, so the government’s capability to use electronic surveillance against suspected terrorists and citizens alike continues unabated through August 2008. Republican Reaction - House Minority Leader John Boehner (R-OH) warns, “This is a grave problem, and the Democrat leaders ought to be held accountable for their inaction.” Senate Minority Leader Mitch McConnell (R-KY) says, “The companies have been waiting for six months for retroactive liability” protection. “They are under pressure from their directors, pressure from their shareholders, and you’re jeopardizing the entire existence of the company by continuing to do this.” Democratic Reaction - But House Democrats seem to be in no mood to give in to Bush’s rhetoric. Speaker of the House Nancy Pelosi (D-CA) says Bush is “misrepresenting the facts on our nation’s electronic-surveillance capabilities.” “There is no risk the program will go dark,” says Silvestre Reyes (D-TX), chairman of the House Intelligence Committee. Many Democrats accuse the administration of putting the interests of telecom firms over national security—accusations that intensify after Bush’s Director of National Intelligence, Mike McConnell, admitted that the real issue behind the reauthorization is the immunity for telecoms (see February 15-17, 2008). Senator Edward Kennedy (D-MA) says that the entire argument is “nothing more than a scare tactic designed to avoid legal and political accountability and keep Americans in the dark about the administration’s massive lawbreaking.” House member Tim Walz (D-MN) says, “Coming from a military background, I sure don’t downplay that there are threats out there, but the president’s demagoguery on this is the equivalent of the boy crying wolf.” And Rahm Emanuel (D-IL), the head of the House Democratic Caucus, says bluntly: “This is not about protecting Americans. The president just wants to protect American telephone companies.” Previous Depiction - When the law was signed into effect August 5, 2007, it was portrayed by the White House as “a temporary, narrowly focused statute to deal with the most immediate needs of the intelligence community to protect the country.” Now it is being portrayed by Bush officials as the cornerstone of the nation’s terrorist-surveillance program. The issue is sure to resurface when Congress returns from a week-long break in late February. [Associated Press, 2/14/2008; Washington Post, 2/16/2008]

The American Civil Liberties Union learns of another Justice Department memo in a Freedom of Information Act (FOIA) response that produces a 2003 memo supporting the use of torture against terror suspects (see April 1, 2008). This 2001 memo (see October 23, 2001), says that the Constitution’s protections against unreasonable searches and seizures—fundamental Fourth Amendment rights—do not apply in the administration’s efforts to combat terrorism. The Bush administration now says it disavows that view. Background - The memo was written by John Yoo, then the deputy assistant attorney general, and the same lawyer who wrote the 2003 torture memo. It was written at the request of the White House and addressed to then-Attorney General Alberto Gonzales. The administration wanted a legal opinion on its potential responses to terrorist activity. The 37-page memo itself has not yet been released, but was mentioned in a footnote of the March 2003 terror memo. “Our office recently concluded that the Fourth Amendment had no application to domestic military operations,” the footnote states, referring to a document titled “Authority for Use of Military Force to Combat Terrorist Activities Within the United States.” Relationship to NSA Wiretapping Unclear - It is not clear exactly what domestic military operations the October memo covers, but federal documents indicate that the memo relates to the National Security Agency’s Terrorist Surveillance Program (TSP). The TSP began after the 9/11 attacks, allowing for warrantless wiretaps of phone calls and e-mails, until it stopped on January 17, 2007, when the administration once again began seeking surveillance warrants from the Foreign Intelligence Surveillance Court (see May 1, 2007). White House spokesman Tony Fratto says that the October 2001 memo is not the legal underpinning for the TSP. Fratto says, “TSP relied on a separate set of legal memoranda” outlined by the Justice Department in January 2006, a month after the program was revealed by the New York Times (see February 2001, After September 11, 2001, and December 15, 2005). Justice Department spokesman Brian Roehrkasse says department officials do not believe the October 2001 memo was about the TSP, but refuses to explain why it was included on FOIA requests for documents linked to the TSP. No Longer Applicable - Roehrkasse says the administration no longer holds the views expressed in the October 2001 memo. “We disagree with the proposition that the Fourth Amendment has no application to domestic military operations,” he says. “Whether a particular search or seizure is reasonable under the Fourth Amendment requires consideration of the particular context and circumstances of the search.” The ACLU’s Jameel Jaffer is not mollified. “The recent disclosures underscore the Bush administration’s extraordinarily sweeping conception of executive power,” he says. “The administration’s lawyers believe the president should be permitted to violate statutory law, to violate international treaties and even to violate the Fourth Amendment inside the US. They believe that the president should be above the law.” He continues, “Each time one of these memos comes out you have to come up with a more extreme way to characterize it.” The ACLU has filed a court suit to challenge the government’s withholding of the memo. [Associated Press, 4/3/2008] Another civil rights group, the Electronic Frontier Foundation, joins the ACLU in challenging the memo (see April 2, 2008).

The American Civil Liberties Union (ACLU), fresh from obtaining the release of a 2003 Justice Department memo that justified torture for US military officials (see April 1, 2008), calls on the Bush administration to release a still-secret Justice Department memo from October 2001 that the 2003 memo used as legal justification to ignore the Fourth Amendment (see October 23, 2001). The Fourth Amendment protects against unlawful search and seizure. The 2001 memo claims that the “Fourth Amendment had no application to domestic military operations.” The ACLU believes that the Fourth Amendment justification “was almost certainly meant to provide a legal basis for the National Security Agency’s warrantless wiretapping program, which President Bush launched the same month the memo was issued” (see Shortly After September 11, 2001-October 2005), a claim the Justice Department denies. The NSA is part of the Defense Department. Jameel Jaffer, director of the ACLU’s National Security Project, says: “The recent disclosures underscore the Bush administration’s extraordinarily sweeping conception of executive power. The administration’s lawyers believe the president should be permitted to violate statutory law, to violate international treaties, and even to violate the Fourth Amendment inside the US. They believe that the president should be above the law.” No one has ever tried to assert, before this memo was written, that the Fourth Amendment was legally impotent for any reason or justification inside US borders. Jaffer notes that no court has ever ruled that the Fourth Amendment does not apply to the military: “In general, the government can’t send an FBI agent to search your home or listen to your phone calls without a warrant, and it can’t send a soldier to do it, either. The applicability of the Fourth Amendment doesn’t turn on what kind of uniform the government agent is wearing.” The ACLU has known about the October 2001 memo for several months, but until now has not known anything of its contents. In response to a 2007 Freedom of Information lawsuit, the Justice Department acknowledged the existence of “a 37-page memorandum, dated October 23, 2001, from a deputy assistant attorney general in OLC [Office of Legal Counsel], and a special counsel, OLC, to the counsel to the president, prepared in response to a request from the White House for OLC’s views concerning the legality of potential responses to terrorist activity.” The only information publicly known about the memo was that it was related to a request for information about the NSA’s warrantless wiretapping program. The ACLU has challenged the withholding of the October 2001 memo in court. [American Civil Liberties Union, 4/2/2008]

The Electronic Frontier Foundation joins the American Civil Liberties Union in its skeptical response to the news of a secret October 2001 Justice Department memo that says the Fourth Amendment does not apply in government actions taken against terrorists (see April 2, 2008). “Does this mean that the administration’s lawyers believed that it could spy on Americans with impunity and face no Fourth Amendment claim?” it asks in a statement. “It may, and based on the thinnest of legal claims—that Congress unintentionally allowed mass surveillance of Americans when it passed the Authorization of Use of Military Force in… 2001 (see September 14-18, 2001) .… In short, it appears that the administration may view NSA domestic surveillance, including the surveillance of millions of ordinary Americans… as a ‘domestic military operation.’ If so, this Yoo memo would blow a loophole in the Fourth Amendment big enough to fit all of our everyday telephone calls, web searches, instant messages and emails through.… Of course, the [Justice Department’s] public defense of the NSA program also asserted that warrantless surveillance did not violate the Fourth Amendment.… But the memo referenced above raises serious questions. The public deserves to know whether the 2001 Yoo memo on domestic military operations—issued the same month that the NSA program began—asserted that the Fourth Amendment did not apply to domestic surveillance operations conducted by the NSA. And of course it reinforces why granting immunity aimed at keeping the courts from ruling on the administration’s flimsy legal arguments is wrongheaded and dangerous.” [Electronic Frontier Foundation, 4/2/2008]

Darrel Vandeveld, in a photo from 2001. [Source: Go Erie (.com)]Former military prosecutor Lieutenant Colonel Darrel Vandeveld agrees with the American Civil Liberties Union’s position that Guantanamo detainee Mohammed Jawad should be released. Vandeveld was the lead prosecutor on the military commission trying Jawad, who has been held for over six years. Vanderveld says in a declaration that there is “no credible evidence or legal basis” to justify Jawad’s detention or prosecution. “There is, however, reliable evidence that he was badly mistreated by US authorities both in Afghanistan and at Guantanamo,” says the declaration, which Vandeveld files in a Washington court in support of the ACLU’s habeas corpus petition. Jawad, who was captured in Afghanistan in 2002 at age 16, was accused of throwing a hand grenade at two US soldiers and their interpreter. Jawad and fellow detainee Omar Khadr, a Canadian citizen, are the last two detainees to face charges based on acts they allegedly committed while they were juveniles. The ACLU maintains that Jawad was tortured to force him to confess. Vandeveld resigned from the military commissions in September 2008, saying he could not ethically proceed with Jawad’s case. In his declaration, Vandeveld says the “chaotic state of evidence” in the military commissions “make it impossible for anyone to harbor the remotest hope that justice is an achievable goal” (see January 20, 2009). [Agence France-Presse, 1/13/2009]

Marty Lederman. [Source: Georgetown Law School]Georgetown law professor Marty Lederman, familiar to legal scholars and progressive bloggers for his work on the legal blog “Balkinization,” joins the Justice Department’s Office of Legal Counsel (OLC) as assistant attorney general. Lederman has been an outspoken critic of the Bush administration’s policies on warrantless wiretapping and torture. Lederman’s boss, OLC chief Dawn Johnsen, has been a frequent “guest blogger” on Balkinization, as well as a contributor to Slate’s legal blog “Convictions.” Lederman’s colleague Jack Balkin writes: “Needless to say, I am very pleased for the country by Marty’s new job. I do not exaggerate when I say that Marty is one of the finest lawyers I know, and there is perhaps no better time to put his remarkable talents to use in helping to reform a Justice Department that so badly needs reform.” Lederman is taking the position formerly held by lawyer John Yoo during the first few years of the Bush administration. [Think Progress, 1/20/2009; Balkinization, 1/20/2009]

In an interview for the German television program Frontal 21, broadcast on ZDF, Professor Manfred Nowak, the United Nations rapporteur responsible for torture, states that with George W. Bush’s head of state immunity now terminated, the new government of Barack Obama is obligated by international law to commence a criminal investigation into Bush’s torture practices. “The evidence is sitting on the table,” Nowak says. “There is no avoiding the fact that this was torture.” Nowak cites the Convention Against Torture (see October 21, 1994), which obligates a signatory country such as the US to criminally prosecute anyone who tortures a person, or extradites a person to a country which will torture him. “The government of the United States is required to take all necessary steps to bring George W. Bush and Donald Rumsfeld before a court,” Nowak says. Nowak headed a 2006 study of conditions at Guantanamo that concluded the practices used at that facility and approved by the Bush administration violated human rights norms and constituted torture. ZDF also interviews attorney Wolfgang Kaleck, who brought charges against former Defense Secretary Donald Rumsfeld before German prosecutors. The Obama administration is “off to a good beginning” with its explicit renunciation of torture, Kaleck says, but has yet to show how it will hold Bush, Rumsfeld, and others accountable for their crimes, nor has it demonstrated its legally obligated duty to provide compensation to torture victims. Lastly, law professor Dietmar Herz confirms that Bush bears personal responsibility for the introduction and use of torture. Herz confirms that once Bush lost his immunity from prosecution as a head of state, the US is obligated to prosecute him for crimes against humanity. [Harper's, 1/21/2009]

An array of Afghan and Pakistani human rights representatives and former Guantanamo inmates say that President Obama’s plans to close the detention camp (see January 22, 2009) do not go far enough. Other US detention centers should also be shut down and former inmates should be compensated, they say. Obama “is closing it in order to put an end to the criticism from human rights groups and also to get rid of the bad image it created for the Americans,” says Mullah Abdul Salam Zaeef, a former Taliban ambassador to Pakistan who spent more than three years imprisoned at Guantanamo. “But he needs to restore justice for prisoners who were persecuted there during investigations. There were innocent people imprisoned there. He needs to put on trial those who were involved in the persecution of inmates.” Lal Gul Lal, the head of the Afghanistan Human Rights Organization, calls the Guantanamo prison “a flagrant violation of international and American laws.” He continues: “If Obama’s administration wants to get rid of the criticism and wants to implement justice then it should hand over to their respective countries all the prisoners it has in various prisons in Iraq, Afghanistan, and elsewhere. If that does not happen the closure of Guantanamo will have no meaning.” Some 250 prisoners are still being held in Guantanamo, around 600 prisoners still remain in custody at the detention facility at Bagram Air Force Base in Afghanistan, and more are being held in camps at Kandahar and Khost. Many of the detainees have never been charged with a crime. Amina Masood Janjua, a Pakistani campaigner for the release of detainees, says while the closing of Guantanamo will be a positive development, “those governments which are running illegal torture cells and safe houses set up by intelligence agencies and militaries should be forced to close them too.” Khalid, a former Pakistani security agent who now heads the Defense of Human Rights organization, calls the closure “nothing… a media stunt.” He adds: “After brutally and inhumanely treating inmates, now they’re pretending that they believe in justice and human rights. What about the human rights crimes committed there? What about those who have seen the worst time of their lives there? Is it that easy to ignore or forgive?” [Reuters, 1/22/2009]

Former Attorney General Alberto Gonzales tells an NPR reporter that he never allowed the Justice Department (DOJ) to become politicized, and that he believes the historical judgment of his tenure in the department will be favorable. He acknowledges making some errors, including failing to properly oversee the DOJ’s push to fire nine US attorneys in 2008, a process many believe was orchestrated by the White House with the involvement of Gonzales and then-White House political guru Karl Rove. Failure to Engage - “No question, I should have been more engaged in that process,” he says, but adds that he is being held accountable for decisions made by his subordinates. “I deeply regret some of the decisions made by my staff,” he says, referring to his former deputy Paul McNulty, who resigned over the controversy after telling a Senate committee that the attorney firings were performance-related and not politically motivated. Gonzales says his then-chief of staff, Kyle Sampson, was primarily responsible for the US attorney review process and for working with McNulty. “If Paul McNulty makes a recommendation to me—if a recommendation includes his views—I would feel quite comfortable that those would be good recommendations coming to me” about the qualifications of the US attorneys under question, Gonzales says. He adds that he has “seen no evidence” that Rove or anyone at the White House tried to use the US attorneys to politicize the work at the DOJ. A review by the DOJ’s Inspector General found that the firing policy was fundamentally flawed, and that Gonzales was disengaged and had failed to properly supervise the review process. Claims He Was Unfairly Targeted by 'Mean-Spirited' Washington Insiders - Gonzales says he has been unfairly held responsible for many controversial Bush administration policies, including its refusal to abide by the Geneva Conventions (see Late September 2001, January 9, 2002, January 18-25, 2002, January 25, 2002, August 1, 2002, November 11, 2004, and January 17, 2007) and its illegal eavesdropping on US citizens (see Early 2004, March 9, 2004, December 19, 2005, Early 2006, and February 15, 2006), because of his close personal relationship with former President Bush. Washington, he says, is a “difficult town, a mean-spirited town.” He continues: “Sometimes people identify someone to target. That’s what happened to me. I’m not whining. It comes with the job.” Visiting Ashcroft at the Hospital - In 2004, Gonzales, then the White House counsel, and White House chief of staff Andrew Card raced to the bedside of hospitalized Attorney General John Ashcroft to persuade, or perhaps coerce, Ashcroft to sign off on a secret government surveillance program (see March 10-12, 2004). The intervention was blocked by Deputy Attorney General James Comey (see March 12-Mid-2004). Gonzales says he has no regrets about the incident: “Neither Andy nor I would have gone there to take advantage of somebody who was sick. We were sent there on behalf of the president of the United States.” As for threats by Justice Department officials to resign en masse over the hospital visit (see Late March, 2004), Gonzales merely says, “Lawyers often disagree about important legal issues.” Warning about Plain Speaking - Gonzales says Obama’s attorney general nominee, Eric Holder, should refrain from making such statements as Holder made last week when he testified that waterboarding is torture. “One needs to be careful in making a blanket pronouncement like that,” Gonzales says, adding that such a statement might affect the “morale and dedication” of intelligence officials and lawyers who are attempting to make cases against terrorism suspects. [National Public Radio, 1/26/2009]

The American Civil Liberties Union (ACLU) asks the Obama administration to publicly release some 50 secret Bush Justice Department memos that were written to justify the Bush administration’s interrogation and domestic spying programs. The Bush White House consistently refused to release the memos, citing national security, attorney-client privilege, and the need to protect the government’s deliberative process. The ACLU request comes after President Obama rescinded a 2001 executive order that gave government agencies broad legal cover to reject public disclosure requests (see January 21, 2009). Obama has asked agencies to be more transparent in deciding what documents can and cannot be released under the Freedom of Information Act; the ACLU intends to put Obama’s words to the test. “The president has made a very visible and clear commitment to transparency,” says Jameel Jaffer, the director of the ACLU’s National Security Project. “We’re eager to see that put into practice.” Many see the Justice Department memos, written by lawyers in the Office of Legal Counsel, as the “missing puzzle pieces” that will help explain the Bush administration’s antiterrorism policies. Critics of the Bush administration say that the memos may help determine whether officials of the former administration should be held accountable for legal opinions that justified waterboarding and other illegal interrogation practices. “We don’t have anything resembling a full picture of what happened over the last eight years and on what grounds the Bush administration believed it could order such methods,” says Jaffer. “We think the OLC memos are really central to that narrative.” The ACLU is aware of the memos’ existence, but not much else. Jaffer says: “There are about a dozen memos where we just have one or two lines about the subject matter and that’s it. When you put it all together you realize how much is still being held secret.” [McClatchy News, 1/28/2009]

Reflecting on the Bush administration’s decision to create “military commissions” to try terror suspects (see November 13, 2001), John Bellinger, the former legal adviser to the National Security Council during much of the Bush administration, says: “A small group of administration lawyers drafted the president’s military order establishing the military commissions, but without the knowledge of the rest of the government, including the national security adviser, me, the secretary of state, or even the CIA director. And even though many of the substantive problems with the military commissions as created by the original order have been resolved by Congress in response to the Supreme Court’s decision in the Hamdan case (see June 30, 2006), we have been suffering from this original process failure ever since.” [Vanity Fair, 2/2009]

Jonathan Hafetz of the American Civil Liberties Union calls the case of alleged al-Qaeda detainee Ali Saleh Kahlah al-Marri (see June 23, 2003) a key test of “the most far-reaching use of detention powers” ever asserted by the executive branch. Al-Marri has spent five years incarcerated in the Charleston Naval Brig without being charged with a crime. “If President Obama is serious about restoring the rule of law in America, they can’t defend what’s been done to Marri. They would be completely buying into the Bush administration’s war on terror,” he says. Hafetz, who is scheduled to represent al-Marri before the Supreme Court in April, compares the Bush administration’s decision to leave al-Marri in isolation to his client’s being stranded on a desert island. “It’s a Robinson Crusoe-like situation,” he adds. Hafetz says that among the issues to be decided is “the question of who is a soldier, and who is a civilian.” He continues: “Is the fight against terrorism war, or is it not war? How far does the battlefield extend? In the past, they treated Peoria as a battlefield. Can an American be arrested in his own home and jailed indefinitely, on the say-so of the president?” Hafetz wants the Court to declare indefinite detention by executive fiat illegal. He also hopes President Obama will withdraw al-Marri’s designation as an enemy combatant and reclassify him as a civilian; such a move would allow al-Marri to either be charged with crimes and prosecuted, or released entirely. Civil liberties and other groups on both sides of the political divide have combined to file 18 amicus briefs with the Court, all on al-Marri’s behalf. The al-Marri decision will almost certainly impact the legal principles governing the disposal of the approximately 240 detainees still being held at Guantanamo. Opinion of Former Bush Administration Officials - Former Bush State Department counsel John Bellinger says of his counterparts in the Obama administration: “They will have to either put up or shut up. Do they maintain the Bush administration position, and keep holding [al-]Marri as an enemy combatant? They have to come up with a legal theory.” He says that Obama officials will find it more difficult to put their ideals into action: “Governing is different from campaigning,” he notes, and adds that Obama officials will soon learn that “they can’t just set the clocks back eight years, and try every terror suspect captured abroad in the federal courts.” Former Attorney General John Ashcroft calls keeping al-Marri and other “enemy combatants” locked away without charges or trials a “sound decision” to “maximize the national interest,” and says that in the end, Obama’s approach will be much like Bush’s. “How will he be different?” he asks. “The main difference is going to be that he spells his name ‘O-b-a-m-a,’ not ‘B-u-s-h.’” Current Administration's Opinion - Obama spokesman Larry Craig sums up the issue: “One way we’ve looked at this is that we own the solution. We don’t own the problem—it was created by the previous administration. But we’ll be held accountable for how we handle this.” [New Yorker, 2/23/2009]

A Justice Department investigation finds that the legal work done by John Yoo and two other former Justice lawyers for the Bush administration was unacceptably deficient. Opinions written by Yoo, his former boss Jay Bybee of the Office of Legal Counsel (OLC), and Bybee’s successor, Steven Bradbury, often ignored legal precedent and existing case law as they took extralegal stances on a number of controversial issues, including torture and domestic surveillance. Many of the opinions, including the August 2002 “Golden Shield” memo (see August 1, 2002), were written specifically to authorize illegal acts such as waterboarding that had already taken place, in an apparent attempt to provide the Bush administration with retroactive legal “cover.” The investigation finds that in that memo, Yoo ignored the landmark 1952 Youngstown Supreme Court ruling (see June 2, 1952) that restricts presidential authority. The investigation also finds that in the March 2003 memo authorizing the military to ignore the law in using extreme methods in interrogating suspected terrorists (see March 14, 2003), Yoo ignored the advice of military lawyers and Justice Department officials who warned that the memo contained major legal flaws. In this and others of Yoo’s torture memos, the investigation finds that he went well beyond the legal bounds of interrogation methods, failed to cite legal cases that might have undercut the Bush administration’s claims of broad new war powers, and refused to rewrite his opinions in light of these caveats. And, the investigation finds, Yoo often went over the head of Attorney General John Ashcroft and dealt directly with the White House, particularly with White House lawyers David Addington and Alberto Gonzales. The investigation was headed by H. Marshall Jarrett, the head of the Justice Department’s Office of Professional Responsibility (OPR), and has been in operation since 2004, following the Abu Ghraib torture scandal and the leak of one of Yoo’s “torture memos.” It is unclear whether the final OPR report will find that the actions of the former OLC lawyers rose to the level of “professional misconduct.” The report is being reviewed by Attorney General Eric Holder and other Justice Department officials. A draft was actually completed last year, and a copy was supposed to be given to Senators Richard Durbin (R-IL) and Sheldon Whitehouse (D-RI), but then-Attorney General Michael Mukasey repeatedly blocked the report’s release in order to give Yoo, Bybee, and Bradbury time to prepare their responses. Durbin and Whitehouse have asked Jarrett to explain the delay in the report’s release. [Public Record, 2/22/2009]

The Justice Department defies a recent court order (see February 27, 2009) and refuses to provide a document that might prove the Bush administration conducted illegal wiretaps on a now-defunct Islamic charity. The Justice Department files a brief with a California federal district court challenging the court’s right to carry out its own decision to make that evidence available in a pending lawsuit. Even though the document is critical to the lawsuit, the lawyers can obtain the necessary top-secret clearances, and the document would not be made public, the Justice Department claims that the document cannot be entered into evidence. The lawyers for Al Haramain, the Islamic charity and the plaintiffs in the suit, calls the Justice Department’s decision “mind-boggling.” Government's Position - For its part, the Justice Department writes in a brief that the decision to release the document “is committed to the discretion of the executive branch, and is not subject to judicial review.” The document has been in the possession of the court since 2004, when the government inadvertently released it to the plaintiffs. In the same brief, the Justice Department writes: “If the Court intends to itself grant access to classified information directly to the plaintiffs’ counsel, the government requests that the Court again provide advance notice of any such order, as well as an ex parte, in camera description of the information it intends to disclose, to enable the government to either make its own determination about whether counsel has a need to know, or to withdraw that information from submission to the Court and use in this case. If the Court rejects either action by the government, the government again requests that the Court stay proceedings while the government considers whether to appeal any such order.” The statement is an implied threat that the Justice Department lawyers will themselves physically remove the document from the court files if the judge says he has the right to allow Al Haramain’s lawyers to see it. Response from Plaintiff's Attorney - Jon Eisenberg, a lawyer for Al-Haramain, says in an e-mail: “It’s a not-so-thinly veiled threat to send executive branch authorities (the FBI? the Army?) to Judge [Virginia] Walker’s chambers to seize the classified material from his files! In my view, that would be an unprecedented violation of the constitutional separation of powers. I doubt anything like it has happened in the history of this country.” Eisenberg says that the Obama administration, through the Justice Department, “seems to be provoking a separation-of-powers confrontation with Judge Walker.” Administration's Second Use of State Secrets - This is the second time the Obama administration has invoked the “state secrets” privilege to keep information secret (see February 9, 2009). Marc Rotenberg of the Electronic Privacy Information Center (EPIC) says: “In the Bush administration, the state secrets doctrine was used to buttress the power of the president and make it difficult if not impossible to contest such issues as presidential authority to conduct warrantless wiretapping in the United States. We would think that when such disagreements occur, it’s properly before the judiciary to resolve them. But the Bush administration asserted the state secrets doctrine for the purpose of making it effectively impossible for courts to review the matter.” The Al Haramain case is significant because of “the apparent willingness of the Obama administration’s Justice Department to carry further that same argument in federal court. It is of great concern.” [Washington Independent, 3/2/2009]

Montana Governor Brian Schweitzer (D-MT) signs into law House Bill 246. It exempts Montana-made guns from federal regulation. The law is the latest in a long list of legislative initiatives designed to strip power from the federal government and give it to the states. “It’s a gun bill, but it’s another way of demonstrating the sovereignty of the state of Montana,” Schweitzer says. The impact is limited to Montana, which currently has only a small number of specialty gun makers who make mostly replica and recreation rifles from US history, and most of their customers are out of state. However, supporters of the new law hope it will trigger a court case testing the legal basis for federal rules governing gun sales. State Representative Joel Boniek (R-MT), who sponsored the bill, said during the House debate, “What we need here is for Montana to be able to handle Montana’s business and affairs.” Many legislators among the 50 states have introduced legislation designed to push back against what they see as unconstitutional federal intrusion, often in response to the Obama administration’s economic stimulus plan. Some legislators consider themselves part of, or sympathetic to, the “tenther” movement, that construes the Tenth Amendment of the Constitution as vastly restrictive of the federal government’s powers. Another Montana representative, Michael More (R-MT), recently said of the gun bill and similar legislation, “The whole goal is to awaken the people so that we can return to a properly grounded republic.” Legislatures in 15 other states are considering resolutions that attempt to take back power from the federal government. “The balance has swung far to the extreme to the empowerment of the federal government, and to the harm of the individual states,” More says. However, critics warn that the “tenther” movement and the move to give power to the states is in line with anti-government militia ideals. “When you really actually get in and look at it there is a lot of what we feel is very dangerous, very anti-government language that reads very similar to posters for the militia movement in the 1990s,” says Travis McAdam of the Montana Human Rights Network. Montana Senator Christine Kaufmann (D-MT) says, “I do think that there is a kind of renewed vehemence to this kind of right-wing rhetoric being spewed by conservative talk show hosts to rile the troops and they are using the fact that we have a Democratic, black president as one of their rallying calls.” In Montana, the states’ rights bills are being sponsored by freshman legislators who were elected as part of an effort to oust more moderate Republicans and replace them with more conservative, “tea party-friendly” representatives. Supporters of House Bill 246 now intend to find someone to challenge a regulation by the Bureau of Alcohol, Tobacco and Firearms (BATF) that requires federal dealership licensing to build and sell firearms; they will use that pretext to file a lawsuit that they hope will end in the Supreme Court. The Montana Shooting Sports Association, which drafted House Bill 246, has said it will raise the money to pay for any legal costs. [Associated Press, 4/16/2009] Author and columnist David Neiwert later notes, in agreement with Kaufmann, that the Montana gun bill echoes the ideas of “state sovereignty” promoted by radical-right militia groups and “constitutionalists” in the 1990s. The idea behind the bill originated with Charles Duke (R-CO), a far-right Colorado legislator from the 1990s who had close ties to the Rocky Mountain-area militias (see May 15-21, 1996). Duke is considered one of the first “tenther” proponents, and is popular with white supremacists who espouse the “Christian Identity” belief system (see 1960s and After). Neiwert will also note that the gun legislation prompts a series of segments from Fox News host Glenn Beck on the bill and how he hopes it is the first of a larger number of legislative and court initiatives that will ultimately cripple the federal government. [Crooks and Liars, 5/15/2009]

US Chamber of Commerce President and CEO Thomas Donahue blasts Senate Democrats for attempting to pass the DISCLOSE Act, which, if approved by Congress and signed into law by President Obama, would force the disclosure of the identities of corporate political donors. The DISCLOSE Act was proposed by Congressional Democrats in response to the Supreme Court’s controversial Citizens United decision that allows virtually unlimited and anonymous political spending by corporations and other entities (see January 21, 2010). The USCOC, a trade organization that spends heavily on Republican causes, is one of the “independent” organizations that would be most affected by the DISCLOSE Act (see January 21-22, 2010). Donahue, whose organization is lobbying members of Congress against the bill, says that the bill would infringe upon constitutional guarantees of free speech (see January 21, 2010) because it requires donors to state publicly their political positions, which not every organization or individual wishes to do. “The fact that this assault to the First Amendment is being considered as millions are desperately looking for work is a complete outrage,” Donahue says in a statement. “Despite their best efforts, there is no back room dark enough, no partisan motive strong enough, and no cynicism profound enough to barter away Americans’ freedom of speech.” [The Hill, 7/26/2010] Senate Republicans will successfully block the bill from coming to a vote (see July 26-27, 2010).

Protesters in Los Angeles demonstrate against Proposition 23 outside a Tesoro refinery in Wilmington, California. [Source: Los Angeles Times]The liberal news Web site AlterNet shows that a very small number of wealthy, influential donors are driving campaign efforts to pass Proposition 23, a California ballot initiative that would suspend state legislation designed to help reduce carbon emissions and hold polluters accountable. The legislation, AB 32, is already in effect, and requires California to decrease global warming emissions to 1990 levels by 2020, beginning in 2012. Prop 23, as it is called, would suspend AB 32 until the state’s unemployment rate drops below 5.5 percent for four consecutive quarters. Currently unemployment in California is around 12 percent. AlterNet provides data showing that AB 32 will actually create jobs developing “clean” technologies and energies, an industry sometimes called “green tech.” Venture capitalist Vinod Khosla recently said: “AB 32 created markets. Prop. 23 will kill the market and the single largest source of job growth in California in the last two years.” The funding for the advertising and other political activities pushing Prop 23 comes from two primary sources: Texas oil giant Valero Energy Corporation and Tesoro Corporation. Both companies have refineries in California that make them two of the state’s biggest polluters. The two oil companies are aided by large donations from the Koch brothers, who own oil conglomerate Koch Industries (see 1977-Present, 1979-1980, 1981-2010, 1984 and After, May 6, 2006, April 15, 2009, May 29, 2009, December 6, 2009, November 2009, July 3-4, 2010, August 28, 2010, August 30, 2010, and September 24, 2010). Valero has spent $5 million to bolster Prop 23 and Tesoro has spent $2 million. Flint Hill Resources, a Koch Industries subsidiary, has spent $1 million. Marathon Petroleum has spent $500,000, as has the conservative Adam Smith Foundation of Missouri. Occidental Petroleum has spent $300,000; Tower Energy Group, $200,000; CVR Energy, $150,000; and about $100,000 each has been spent by the Howard Jarvis Taxpayers Association, the National Petrochemical and Refiners Association, and World Oil Corporation. Of the $10.6 million raised so far to push Proposition 23, only 30 percent of it comes from inside California. In contrast, opponents to Proposition 23 have raised $30.6 million to defeat it, with 70 percent of that money coming from inside California. Jorge Madrid of Climate Progress recently warned: “If we allow Prop 23 to succeed, big oil refineries in the state could continue to spew greenhouse gases without strict regulation. Even worse, a victory for big oil in California could mean certain death for greenhouse gas regulation for the rest of the nation.” [AlterNet, 10/30/2010; Los Angeles Times, 11/2/2010] Prop 23 will lose by a 61-39 margin, with analysts noting that the anti-proposition forces gained ground by pointing out the support for the proposition coming primarily from Texas oil interests. Even many of California’s largest oil companies either stayed neutral or opposed the initiative. The anti-proposition forces were fueled primarily by financiers such as San Francisco hedge fund manager Tom Steyer, the National Wildlife Federation and the ClimateWorks Foundation, and green-tech moguls such as Khosla and John Doerr. Governor Arnold Schwarzenegger (R-CA) stumped in opposition to the initiative, attacking the “self-serving greed” of Valero and Tesoro. The Environmental Defense Fund’s Fred Krupp says of the defeat: “It is the largest public referendum in history on climate and clean energy policy. Almost 10 million Californians got a chance to vote and sent a clear message that they want a clean energy future. And this was in an economic downturn. There has never been anything this big. It is going to send a signal to other parts of the country and beyond.” [Los Angeles Times, 11/2/2010]

Democrats in Congress are contemplating using the Constitutional amendment process to overturn the controversial Citizens United ruling by the Supreme Court that allows unlimited corporate spending on elections (see January 21, 2010). A new poll from Public Polling Policy as commissioned by the Progressive Change Campaign Committee (PCCC) finds that a plurality of voters would support such an amendment. Forty-six percent of voters surveyed agreed that “Congress should consider drastic measures such as a Constitutional amendment overturning the recent Supreme Court decision allowing unlimited corporate spending in elections.” Thirty-six percent disagreed, and 18 percent had no opinion. Such an amendment would likely fail in Congress, as it would require a two-thirds majority in both chambers and then ratification by three-quarters of the states. Representative Donna Edwards (D-MD) wrote such an amendment, in draft form, the evening that the Citizens United decision was announced. Her proposed amendment reads: “The sovereign right of the people to govern being essential to a free democracy, Congress and the States may regulate the expenditure of funds for political speech by any corporation, limited liability company, or other corporate entity. Nothing contained in this Article shall be construed to abridge the freedom of the press.” She says that there have been times in American history that such amendments catch the public attention and move quickly into law. “The process is very rigorous, and it should be,” she says. “But there have been plenty of examples of amendments to the Constitution that have happened, actually, with fairly rapid-fire when they catch on.” She adds: “I really concluded that the Supreme Court actually put the challenge out to us, here in the Congress. They said, you know, you could make a judgment that this is not really good for the system, but the fact is that the Constitution doesn’t allow you to regulate this. Congress, you have no—the Court told us directly—Congress, you have no authority to regulate. And when the Court says that so directly, it only leaves us one choice.” Two prominent Senate Democrats, John Kerry (D-MA) and Max Baucus (D-MT), support the amendment. A Baucus spokesperson says, “Max is always willing to work with anyone toward the common goal of making sure Montanans’ voices don’t get drowned out by out-of-control corporate campaign donations.” PCCC co-founder Adam Green says: “It’s time to stop thinking small-bore. The solution to Citizens United is not merely disclosure, it’s to overturn Citizens United—and even last November’s Republican-skewed electorate agrees.” Edwards says that Democrats should embrace the concept that the Constitution is a political ground worth fighting on. “A lot of progressives are not accustomed to using the mechanisms of the Constitution,” she says. “The right has used—has tried to do that an awful lot of times on a whole range of different things in state legislatures and across the board. And as progressives, we’re not accustomed to doing that, and this is one instance, though, where the populist demand is there, and our energy and our policy has to match that demand and a Constitutional amendment does that.” [Huffington Post, 11/23/2010]

US Senator Mike Lee (R-UT) posts a video on his YouTube channel in which he declares federal child labor laws “unconstitutional.” Lee says: “Congress decided it wanted to prohibit [child labor], so it passed a law—no more child labor. The Supreme Court heard a challenge to that and the Supreme Court decided a case in 1918 called Hammer v. Dagenhardt. In that case, the Supreme Court acknowledged something very interesting—that, as reprehensible as child labor is, and as much as it ought to be abandoned—that’s something that has to be done by state legislators, not by members of Congress.… This may sound harsh, but it was designed to be that way. It was designed to be a little bit harsh. Not because we like harshness for the sake of harshness, but because we like a clean division of power, so that everybody understands whose job it is to regulate what. Now, we got rid of child labor, notwithstanding this case. So the entire world did not implode as a result of that ruling.” Think Progress reporter Ian Millhiser calls Lee’s interpretation flawed. The Constitution gives Congress the power “[t]o regulate commerce… among the several states [and to] make all Laws which shall be necessary and proper for carrying into Execution” this power to regulate commerce. This provision has been upheld in many Court cases. Lee failed to note that in 1941, the Court unanimously overruled Hammer v. Daggenhardt in United States v. Darby. Moreover, Millhiser notes, child labor exploitation did not stop until Congress placed strict limits on it in the Fair Labor Standards Act of 1938, a law upheld by United States v. Darby. [Think Progress, 1/31/2011] Senate Republicans will give Lee a seat on the Senate Judiciary Committee, which works with constitutional interpretation. Lee has also declared Social Security, Medicare, the Federal Emergency Management Agency (FEMA), the Food and Drug Administration (FDA), food stamps, and income assistance to the poor all unconstitutional. [Think Progress, 1/27/2011]

Montana Tea Party protesters stage a demonstration in front of the state capitol in Helena, Montana, in a photo from March 2010. [Source: Bozeman Daily Chronicle]The Montana state legislature, now controlled by Republicans who claim affiliation with the Tea Party, introduces bills that would mandate the following: Legalize hunting with hand-thrown spears (Senate Bill 112). Create a fully-armed militia in every Montana town (House Bill 278). Allow legislators to carry weapons in the Capitol (Senate Bill 279). Create an 11-person panel that has the authority to nullify all federal laws (House Bill 382). Allow guns in schools (House Bill 558). Eliminate the educational requirements for persons seeking the job of state superintendent of schools (HB 154). Lift the state-mandated nuclear ban for the purpose of building a nuclear reactor in the Flathead Valley (House Bill 326). Withdraw the United States of America from the United Nations (Senate Joint Resolution 2). Eliminate all state incentives for developing wind power (House Bill 244). Omit President Barack Obama’s name from the 2012 state ballot because his father was born outside of America (House Bill 205). Mandate compulsory marriage counseling for people seeking a divorce (House Bill 438). Give local sheriffs authority over the federal government in terror investigations (Senate Bill 114). Legalize hunting with silencers (House Bill 174). Lift the prohibition on carrying concealed weapons in bars, churches, and banks (House Bill 384). Eliminate the law that requires landlords to install carbon monoxide detectors (House Bill 354). Require the federal government to prove in court that the national parks were lawfully aquired (House Bill 506). Officially designate the “Code of the West” as the “Code of Montana” (Senate Bill 216). Declare that “global warming is beneficial to the welfare and business climate of Montana,” and humans are not responsible for the phenonemon (House Bill 549). [Montana Cowgirl Blog, 2/17/2011]

Missouri State Senator Jane Cunningham (R-St. Louis ) introduces SB 22 into consideration. The bill would eliminate many state child labor protections, most notably lifting the ban on children under 14 being allowed to work. The bill’s official summary reads in part: “This act modifies the child labor laws. It eliminates the prohibition on employment of children under age 14. Restrictions on the number of hours and restrictions on when a child may work during the day are also removed. It also repeals the requirement that a child ages 14 or 15 obtain a work certificate or work permit in order to be employed. Children under 16 will also be allowed to work in any capacity in a motel, resort, or hotel where sleeping accommodations are furnished. It also removes the authority of the director of the Division of Labor Standards to inspect employers who employ children and to require them to keep certain records for children they employ. It also repeals the presumption that the presence of a child in a workplace is evidence of employment.” While the federal Fair Labor Standards Act would continue to protect child workers in Missouri, Lee’s law, if passed, would let employers hire children under 14, let them work far longer hours, and prohibit state oversight agencies from monitoring employers for possible exploitation or abuse. AFL-CIO blogger Mike Hall calls Lee’s proposal “absolutely insane.” [Mike Hall, 2/14/2011; Think Progress, 2/15/2011]

Iowa State Senator Kent Sorenson (R-IA) introduces a bill, SB 368, that would require candidates for president or vice president to file a certified copy of their birth certificate along with their affidavit of candidacy in order to be eligible to be included on the Iowa election ballot. Sorenson has long identified himself as a believer in the “birther” conspiracy theory that alleges President Obama is not a US citizen (see July 20, 2008, August 15, 2008, October 8-10, 2008, October 16, 2008 and After, November 10, 2008, December 3, 2008, August 1-4, 2009, May 7, 2010, Shortly Before June 28, 2010, and Around June 28, 2010). The bill reads in part: “A candidate for president or vice president shall attach to and file with the affidavit of candidacy a copy of the candidate’s birth certificate certified by the appropriate official in the candidate’s state of birth. The certified copy shall be made part of the affidavit of candidacy and shall be made available for public inspection in the same manner as the affidavit of candidacy.… A candidate for president or vice president who does not comply with the requirements of this section shall not be eligible for placement on the ballot as a candidate for president or vice president anywhere in the state.” The bill does not clear a deadline for submission, but may be reintroduced in the next session. Sorenson previously introduced a bill that would recognize only silver and gold as legal tender in Iowa. He recently told an Iowa reporter that his constituents elected him to the Iowa Senate to “burn this place down. They want me to do battle. And I understand that.” [WorldNetDaily, 3/6/2011; Mother Jones, 3/25/2011]

Maine State Representative David Burns (R-Whiting) introduces a child labor bill that would allow employers to pay workers under 20 years of age a $5.25/hour “training wage.” Such a law would go against Maine’s minimum wage of $7.50/hour. Critics say that Burns’s proposal devalues young workers, and takes money out of the hands of laborers and gives it to business. Burns’s proposal is part of a larger package he presents, LD 1346, which would make a number of changes to Maine’s child labor laws, including lifting restrictions that limit the maximum hours a minor over the age of 16 can work during school days. Burns calls his legislation “empowering” for young workers, and says employers would be more apt to hire minors if they could pay them the smaller wage. “An employer’s got to have employees, so they can decide what they want to pay,” he says. “The student wants to have a job, and they can decide what they’re willing to work for.” Maine Democrats and labor advocates have come out strongly against the bill. Maine Democratic Party chairman Ben Grant accuses Burns of “trying to erase the progress of child labor laws.” The bill, if passed, would roll back wages earned by teens to a point not seen since the 1980s. Laura Harper of the Maine Women’s Lobby says the bill would undermine efforts to “teach teens the value of hard work.” Instead, she says, the bill “sends them the message that they aren’t valued. That doesn’t fit with Maine values. At a time when business leaders recognize that student achievement is critical to Maine’s economic growth, this bill will shortchange students and impair Maine’s economic success.” She cites a 2000 US Department of Labor study that showed “working a limited number of hours in the junior and senior years of high school has a positive effect on educational attainment.” Representative Timothy Driscoll (D-Westbrook) says the bill, and another measure in Maine’s Senate, would result in “kids working more hours during the school week and making less money.” [Bangor Daily News, 3/30/2011] Think Progress reporter Ian Millhiser observes: “Burns’s bill is particularly insidious, because it directly encourages employers to hire children or teenagers instead of adult workers. Because workers under 20 could be paid less than adults under this GOP proposal, minimum wage workers throughout Maine would likely receive a pink slip as their 20th birthday present so that their boss could replace them with someone younger and cheaper.” Millhiser notes that Burns’s proposal is just one of a number efforts that would dramatically roll back child labor restrictions (see January 4, 2011 and February 14, 2011). [Think Progress, 3/31/2011] The Maine House Labor Committee will reject the bill on a unanimous vote that will come without discussion. Burns will not be present for the vote. Another proposal loosening work restrictions for 16- and 17-year-olds is pending in the Maine Senate. [Lewiston/Auburn Sun Journal, 5/6/2011]

Presidential candidate Newt Gingrich explains why he feels the president can arrest judges with whom he disagrees. [Source: CBS News / Talking Points Memo]Republican presidential candidate Newt Gingrich (R-GA) tells a CBS audience that if he becomes president, he would send federal law enforcement officials to arrest judges who make rulings he finds unacceptable. Interviewed by CBS’s Bob Schieffer, he says the president should send Capitol Police officers or US Marshals to arrest “activist” judges who make controversial rulings, and compel them to appear before Congress to justify their decisions. Schieffer asks: “Let me just ask you this and we’ll talk about enforcing it, because one of the things you say is that if you don’t like what a court has done, the Congress should subpoena the judge and bring him before Congress and hold a congressional hearing. Some people say that’s unconstitutional. But I’ll let that go for a minute. I just want to ask you from a practical standpoint, how would you enforce that? Would you send the Capitol Police down to arrest him?” Gingrich responds he would if he “had to,” and continues, “Or you instruct the Justice Department to send the US Marshal.” A judge who issues what Gingrich calls a “radical” ruling would be forced to explain his ruling before Congress, Gingrich says: “I would then encourage impeachment, but before you move to impeach him you’d like to know why he said it.” If the judge refuses to appear under his own power, federal law enforcement officials are empowered to bring them in to testify involuntarily, he says: “I mean, you’re raising the core question—are judges above the rest of the constitution or are judges one of the three co-equal branches?… You have an increasingly arrogant judiciary. The question is: Is there anything we the American people can do? The standard answer has been eventually we’ll appoint good judges. I think that’s inadequate. The Constitution promises a balance of the judicial branch, the executive branch, and the legislative branch. The Federalist Papers say specifically the weakest of the three branches is the judiciary.” Schieffer says: “You know, the old saying in legal circles is that the Supreme Court is not last because it’s right. It’s right because it’s last. There comes a point where you have to accept things as the law of the land. How does the president decide what is a good law—and I’m going to obey the Supreme Court—or what’s a bad law and I’m just going to ignore it.” Gingrich replies: “I think it depends on the severity of the case. I’m not suggesting that the Congress and the president review every decision. I’m suggesting that when there are decisions… in which they are literally risking putting civil liberty rules in battlefields. I mean it is utterly irrational for the Supreme Court to take on its shoulders the defense to the United States. It is a violation of the Constitution.” Reporter Sam Stein notes that the day before, Gingrich held a half-hour telephone call with donors and supporters in which he pledged that if elected president, he would abolish courts and eliminate “activist judges” he considers “outside the mainstream or infringing too deeply on the commander in chief’s authority.” Many judicial experts consider Gingrich’s stance to be flatly unconstitutional. Former Attorney General Michael Mukasey, who served in the recent Bush administration, has called Gingrich’s ideas about the judiciary “dangerous, ridiculous, totally irresponsible, outrageous, off-the-wall, and [likely to] reduce the entire judicial system to a spectacle.” Bert Brandenburg of the nonpartisan Justice at Stake organization says: “Overall, he’s racing towards a cliff. It may be expedient to appeal to specific voters in primaries or caucuses, but it’s a constitutional disaster. Americans want courts that can uphold their rights and not be accountable to politicians. When you get to the point where you’re talking about impeaching judges over decisions or abolishing courts or calling them before Congress, it’s getting very far away from the American political mainstream.” Two of Gingrich’s Republican presidential challengers, Mitt Romney (R-MA) and Ron Paul (R-TX), publicly disagree with Gingrich’s position, with Paul calling the idea of compelling judges to appear before Congress “a real affront to the separation of the powers.” Michael McConnell, director of the Constitutional Law Center at Stanford University and a former federal appeals judge appointed by President Bush, says conservatives “should not be cheering” and “are misled” if they believe Gingrich’s ideas are in their best interests, especially considering many conservatives are relying on the Supreme Court to find President Obama’s health care legislation unconstitutional. He says: “You would think that this would be a time when they would be defending the independence of the judiciary, not attacking it. You can’t have it both ways. It can’t be that when conservative Republicans object to the courts, they have the right to replace judges, and when liberal Democrats disapprove of the courts, they don’t. And the Constitution is pretty clear that neither side can eliminate judges because they disagree with their decisions.” [Washington Post, 12/18/2011; Think Progress, 12/18/2011; Huffington Post, 12/18/2011; Washington Post, 12/19/2011]

An illuminated letter from the Magna Carta. [Source: University of Maine at Farmington]Three freshman New Hampshire Republican House members submit a bill that would require all new legislation proposed in the New Hampshire Congress to source itself in the Magna Carta, the English declaration of rights written in 1215. Bob Kingsbury (R-Laconia), Tim Twombly (R-Nashua), and Lucien Vita (R-Middleton) write a bill that consists of the following single line: “All members of the general court [the New Hampshire legislature] proposing bills and resolutions addressing individual rights or liberties shall include a direct quote from the Magna Carta which sets forth the article from which the individual right or liberty is derived.” Most legal authorities recognize that the Magna Carta, compiled of 63 demands laid down by feudal barons to England’s King John, is one of the sources of inspiration for the US Constitution, but consider it quite outdated for modern use. Some of the Magna Carta’s demands are: “No widow shall be compelled to marry, so long as she wishes to remain without a husband”; “We shall straightway return the son of Llewelin and all the Welsh hostages.… We shall act towards Alexander King of the Scots regarding the restoration of his sisters”; and, “If anyone who has borrowed a sum of money from Jews dies before the debt has been repaid, his heir shall pay no interest on the debt for so long as he remains under age.” Kingsbury says he is primarily thinking of bills concerning the judicial system, and cites the Magna Carta’s clause that states that “no freeman” shall be imprisoned or harmed “save by the lawful judgment of his peers or by the law of the land.” New Hampshire Democratic Party spokesman Ray Buckley says he is “mostly speechless,” and adds: “I appreciate all the hard work the Republican legislators are putting into the effort to make them look like extremists. Saves us the trouble.” Kingsbury tries to downplay the importance of the legislation, saying its primary intent is to honor the Magna Carta’s upcoming 800-year anniversary in 2015. Vita admits that he needs to “bone up” on the content of the charter, but adds, “it’s a document that still functions.” He says the Magna Carta bill is similar to bills in the US Congress requiring all legislation to cite constitutional authority. “This is a little bit older than the Constitution, but the same thought is there,” Vita says. Kingsbury says that concerns of legal problems deriving from any such requirement are “interesting,” adding, “Everything has an analog, everything has an origin, and this is part of the origin of what we have in our country.” Twombly says “no way in heck” was his intention in backing the bill to prevent progressive civil rights legislation from being introduced. “That’s not my thought whatsoever,” he says, acknowledging that the Magna Carta does not address issues like gay rights and abortion. “Our society has changed a lot since then. There are issues that need to be resolved that weren’t a problem years ago.” Kingsbury says even if the law passes, no punitive measures would entail if legislation did not actually cite the Magna Carta. “It’s a recommendation that would be nice to be followed,” he says. [Concord Monitor, 12/24/2011] Think Progress reporter Marie Diamond writes of the bill: “Conservatives have long prided themselves on being constitutional ‘purists’ who want to strip government down to the basic form they say was laid out in the country’s founding document. But requiring textual justification from another country’s founding document, which has no legal history or authority in the US, is a curious extension of that principle.” [Think Progress, 1/4/2012]

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